Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(c) and Section 12.06(c), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to Holders in respect of each $1,000 principal amount of Notes being converted a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation Period. (b) All conversions occurring on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date shall be settled using the same forms and amounts of consideration. Prior to the 12th Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Trading Days. If 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 shall inform converting Holders through the Trustee of such election (a “Settlement Notice”) no later than the Scheduled Trading Day immediately following the related Conversion Date (or in the case of any conversions occurring on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an election, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of converted Notes and delivering shares of the Common Stock in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. (c) The Settlement Amount shall be determined by the Company promptly following the last Trading Day of the Observation Period. Promptly after such determination of the Settlement Amount, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Settlement Amount. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (d) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period. (e) Before any Holder of a Note shall be entitled to convert the same as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f) and (ii) in the case of a Physical Note (1) complete and manually sign a notice in the form of the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”), (2) deliver such notice, which is irrevocable, and such Physical Note, duly endorsed to the Company or in blank, at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 on the Conversion Date for such conversion. A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (f) 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 tax, duty or similar charge required by law that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount 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 Special Interest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect of the Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the Conversion Date shall 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 Special Interest, if any, shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special Interest, Holders of such Notes at the close of business on such Regular Record Date shall receive the Special Interest, if any, payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the corresponding Special Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, payable on the Notes so converted; provided that no such payment need be made (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the corresponding Special Interest Payment Date; or (3) to the extent of any overdue Special Interest, if any overdue Special Interest exists at the time of conversion with respect to such Note. (i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of shares of Common Stock on conversion of Notes pursuant hereto; provided, however, that if such documentary, stamp or similar issue or transfer tax is due because the Holder or beneficial owner of such Notes has requested that shares of Common Stock be issued in a name other than that of the Holder or beneficial owner of the converted Notes, then such taxes shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
Appears in 1 contract
Sources: Indenture (Microsoft Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to Holders the converting Holder, in respect of each $1,000 principal amount of Notes being converted a “Settlement Amount” equal converted, (x) cash up to the sum aggregate principal amount of the Daily Settlement Amounts for each Notes being converted and (y) cash or shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in respect of the 10 Trading Days during remainder, if any, of its Conversion Obligation in excess of the relevant Observation Periodaggregate principal amount of the Notes being converted, as set forth in this Section 14.02(a)(iii) and 14.02(j).
(bi) All conversions occurring for which the relevant Conversion Date occurs on or after May 15, 2029, and all conversions for which the 12th Scheduled Trading Day immediately preceding the Maturity relevant Conversion Date occurs during a Redemption Period, shall be settled using the same forms and amounts of consideration. Prior to .
(ii) Except for any conversions for which the 12th Scheduled Trading Day immediately preceding relevant Conversion Date occurs during a Redemption Period, and any conversions for which the Maturity Daterelevant Conversion Date occurs on or after May 15, 2029, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions with different Conversion Dates. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after May 15, 2029, then the forms and amounts of consideration during the Redemption Period must be the same forms and amounts of consideration that occur apply to all conversions with a Conversion Date that occurs on different Trading Days. If or after May 15, 2029.
(iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after May 15, 2029), 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 shall inform converting Holders through provide a notice (the Trustee of such election (a “Settlement Notice”) to Holders of such election in respect of such Conversion Date (or such period, as the case may be), and the Company shall deliver such Settlement Notice to converting Holders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), the Trustee and the Conversion Agent (if other than the Trustee), no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during a Redemption Period, in the applicable Notice of Redemption or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateMay 15, 2029, no later than the Scheduled Trading close of business on the Business Day immediately preceding such 12th Scheduled Trading DayMay 15, 2029) and (the Company will indicate in the “Settlement Method Election Date”). Such Settlement Notice shall indicate the percentage of each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelection prior to the Settlement Method Election Date, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the Notes being converted Notes and delivering shares of the Common Stock in respect of the remainder, if any, of its the Company’s Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth hereinconverted.
(civ) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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 and, if applicable, deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the Observation Period unless such Conversion Date occurs following the regular Record Date immediately preceding the Maturity Date, in which case the Company shall make such payment (and delivery, if applicable) on the Maturity Date. 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 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth belowin this Section 14.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes (to, but not including the corresponding Interest Payment Date) on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Scheduled Trading Day 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 Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest exists Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected a Cash Percentage less than 100% or if the Company does not deliver a Settlement Notice prior to the Settlement Method Election Date, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (WisdomTree, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(c14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 40 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring on or for which the relevant Conversion Date occurs after the 12th Scheduled Trading Day immediately preceding Company’s issuance of a Redemption Notice with respect to the Maturity Notes and prior to the related Redemption Date shall be settled using the same forms and amounts of consideration, and all conversions for which the relevant Conversion Date occurs on or after March 15, 2030 shall be settled using the same forms and amounts of consideration. Prior Except for any conversions for which the relevant Conversion Date occurs after the Company's issuance of a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after March 15, 2030, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the second immediately succeeding set of parentheses, as the case may be), 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 shall inform converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateMarch 15, 2030, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayMarch 15, 2030) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein.
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the relevant Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of 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) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the full amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made 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 Special Interest Payment Date; or (34) to the extent of any overdue Special Interestinterest, if any such overdue Special Interest exists amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date October 1, 2024 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after October 1, 2024, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company shall inform converting Holders through deliver a written notice (the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring 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 related Redemption Date, in such Redemption Notice or on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateOctober 1, 2024, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”October 1, 2024). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement and the Company shall settle its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of converted Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and delivering shares in the case of an election of Combination Settlement, the Common Stock relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of the remainder, if any, of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in excess 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 cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the aggregate “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each US$1,000 principal portion amount of the Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as set forth hereinthe case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date Date, or promptly following instructions for such conversion. A Note shall No Notice of Conversion with respect to any Notes may be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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 ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockADSs, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Company Person in whose name any ADSs shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the issue relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or delivery the last Trading Day of shares of Common Stock on the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has requested elected (or is deemed to have elected) Combination Settlement, the full number of ADSs that shares of Common Stock shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (iQIYI, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(c14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 60 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date April 15, 2028, shall be settled using the same forms and amounts of consideration. Prior Except for any conversions of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions of Notes for which the relevant Conversion Date occurs on or after April 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateApril 15, 2028, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayApril 15, 2028) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle be deemed to have elected to settle, and the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. The Company shall separately provide to the Trustee and the Conversion Agent (if other than the Trustee) in writing any notice contemplated by this clause (i).
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h) andand such conversion shall be irrevocable after such Holder has complied with the procedures of the Depositary in effect at such time unless the Company, if requiredin its sole and absolute discretion, pay taxes or duties, if any, as required by Section 12.02(f) agrees to permit such Holder to withdraw such conversion and such withdrawal is reasonably feasible pursuant to the procedures of the Depositary in effect at such time and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice (unless the Company, in its sole and absolute discretion, agrees to permit such Holder to withdraw such notice) to the form of Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)) at the Corporate Trust Office or at the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 converting 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 conversionconversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes (to, but not including, the corresponding Interest Payment Date) on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made required (1) for conversions of Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Redemption Date or Fundamental Change Repurchase Date described in clause (2) and (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Enovis CORP)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(c14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to Holders 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 10 40 consecutive Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring (A) for which the relevant Conversion Date occurs on or after October 15, 2030 or (B) occurring after a Redemption Notice Date and prior to the 12th Scheduled close of business on the Trading Day immediately preceding the Maturity Date related Redemption Date, in each case, shall be settled using the same forms and amounts of consideration. Prior .
(ii) Except for (A) any conversions for which the relevant Conversion Date occurs on or after October 15, 2030 and (B) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the 12th Scheduled close of business on the Trading Day immediately preceding the Maturity related Redemption Date, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs on different Trading Days. If or after October 15, 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through (and upon a written request to) the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateOctober 15, 2030, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayOctober 15, 2030) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable upon conversion the Conversion Obligation in excess of the principal portion of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If, in respect of any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the close of business on the Trading Day immediately preceding the related Redemption Date, 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 in respect of such Redemption pursuant to Section 16.01, the Company shall inform converting Holders in such Notice of Redemption and the Company shall indicate in such Notice of Redemption the applicable Cash Percentage. If the Company does not timely make such an electionelect a Cash Percentage prior to the applicable deadline set forth in the immediately preceding sentences, the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall settle its Conversion Obligation by paying cash in be deemed to have elected a Cash Percentage of 0% with respect to such conversion. In no event shall the Company’s failure to make a timely election of the principal portion Cash Percentage constitute an Event of converted Notes and delivering shares of the Common Stock in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth hereinDefault under this Indenture.
(civ) The Daily Settlement Amount Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be deemed to have delivered a notice of its election not to have its Notes so redeemed. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date or Fundamental Change Repurchase Date Date, as applicable, that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (3) to the extent of any overdue Special Interestinterest, if any overdue Special Interest interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date and any Fundamental Change Repurchase Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay Person in whose name any documentary, stamp or similar issue or transfer tax due on the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares, if any, that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Firstenergy Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(cSection 14.03(b) and Section 12.06(cSection 14.07(a), upon conversion of any Note, on or before the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 40 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring of Notes for which the relevant Conversion Date occurs on or after March 1, 2029, and all conversions of Called Notes for which the 12th Scheduled Trading Day immediately preceding relevant Conversion Date occurs during the Maturity Date related Redemption Period, shall be settled using the same forms and amounts of consideration. Prior Except for any conversions of Notes for which the relevant Conversion Date occurs on or after March 1, 2029, or with respect to Called Notes for which the 12th Scheduled Trading Day immediately preceding relevant Conversion Date occurs during the Maturity Daterelated Redemption Period, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of (A) any conversions occurring of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateMarch 1, 2029, no later than March 1, 2029, or (B) any conversions of Called Notes for which the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Dayrelevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. For the avoidance of doubt, the Company’s failure to make a timely election of the Cash Percentage, as described above, will not constitute a Default under this Indenture.
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(fSection 14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 Article 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note any Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 converting 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest, if any. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder on such Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest 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 Redemption Date or any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Wec Energy Group, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Share in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Share in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date September 15, 2025 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity Daterelated Redemption Date and any conversions for which the relevant Conversion Date occurs on or after September 15, 2025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or deliver a portion of its Conversion Obligation in excess of notice (the principal portion of the Notes being converted in cash, the Company shall inform converting Holders through the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateSeptember 15, 2025, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”September 15, 2025). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement and the Company shall settle be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. At any time prior to September 15, 2025, the Company may irrevocably elect to satisfy its Conversion Obligation with respect to the Notes to be converted after the date of such election by paying delivering cash in respect up to the aggregate principal amount of the principal portion of converted Notes to be converted, and delivering shares of the Common Stock Shares, cash or a combination thereof in respect of the remainder, if any, of its Conversion Obligation. Upon making such election, the Company shall promptly (x) provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) and (y) issue a report on Form 8-K or press release or publish on its website to announce that the Company has made such an election.
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the aggregate Company shall deliver to the converting Holder in respect of each $1,000 principal portion amount of the Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 100 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as set forth hereinthe 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 100 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)) at the designated corporate trust office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the designated corporate trust office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay all applicable transfer or similar taxes, if any, as required by pursuant to Section 12.02(f14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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 Observation Period, in the case of any other Settlement Method; provided however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation on the Maturity Date. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockShares, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company Person in whose name the Common Shares shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall be treated as a shareholder of record as of the close of business on the issue relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or delivery the last Trading Day of shares of Common Stock on the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has requested elected Combination Settlement, the full number of shares that shares of Common Stock shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Invacare Corp)
Conversion Procedure; Settlement Upon Conversion.
(a) Except as provided in Section 12.03(cSection 14.03(b) and Section 12.06(cSection 14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 60 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date May 15, 2028, shall be settled using the same forms and amounts of consideration. Prior Except for any conversions of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions of Notes for which the relevant Conversion Date occurs on or after May 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateMay 15, 2028, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayMay 15, 2028) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle be deemed to have elected to settle, and the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. The Company shall separately provide to the Trustee and the Conversion Agent (if other than the Trustee) in writing any notice contemplated by this clause (i).
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(hSection 14.02(h) andand such conversion shall be irrevocable after such Holder has complied with the procedures of the Depositary in effect at such time unless the Company, if requiredin its sole and absolute discretion, pay taxes or duties, if any, as required by Section 12.02(f) agrees to permit such Holder to withdraw such conversion and such withdrawal is reasonably feasible pursuant to the procedures of the Depositary in effect at such time and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice (unless the Company, in its sole and absolute discretion, agrees to permit such Holder to withdraw such notice) to the form of Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)) at the Corporate Trust Office or at the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(hSection 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 Article 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 converting 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 conversionconversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made required (1) for conversions of Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Redemption Date or Fundamental Change Repurchase Date described in clause (2) and (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date January 1, 2023 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after January 1, 2023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company shall inform converting Holders through deliver a written notice (the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring 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 related Redemption Date, in such Redemption Notice or on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateJanuary 1, 2023, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”January 1, 2023). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement and the Company shall settle its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of converted Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and delivering shares in the case of an election of Combination Settlement, the Common Stock relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of the remainder, if any, of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in excess 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 cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the aggregate “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each US$1,000 principal portion amount of the Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as set forth hereinthe case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date Date, or promptly following instructions for such conversion. A Note shall No Notice of Conversion with respect to any Notes may be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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 ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockADSs, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Company Person in whose name any ADSs shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the issue relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or delivery the last Trading Day of shares of Common Stock on the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has requested elected (or is deemed to have elected) Combination Settlement, the full number of ADSs that shares of Common Stock shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Sea LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date September 1, 2025 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 1, 2025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company shall inform converting Holders through deliver a written notice (the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs during the related Redemption Period, in such Redemption Notice or on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateSeptember 1, 2025, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”September 1, 2025). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall settle its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of converted Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and delivering shares in the case of an election of Combination Settlement, the Common Stock relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of the remainder, if any, of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in excess such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be US$1,000. By written notice to the aggregate Holders, the Trustee and the Conversion Agent, the Company may, prior to September 1, 2025, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or minimum Specified Dollar Amount), or eliminate the Company’s right to elect a Settlement Method, to apply all conversions for which the relevant Conversion Date occurs subsequent to the date of delivery of such notice; provided that any such election that is made during a Redemption Period or a Distribution Conversion Period shall not apply to any conversions of Notes called for redemption with Conversion Dates that occur during such Redemption Period or conversions during such Distribution Conversion Period (as applicable).
(iv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each US$1,000 principal portion amount of the Notes being converted a number of ADSs equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the 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 set forth hereinthe case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and14.02(h), and if required, pay taxes all transfer or dutiessimilar taxes, if any, as required by Section 12.02(f) any and (ii) in the case of a Physical Note (1) complete and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h), and if required, pay all transfer or similar taxes, if any. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date Date, or promptly following instructions for such conversion. A Note shall No Notice of Conversion with respect to any Notes may be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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, with respect to any Conversion Date occurring during a Redemption Period, the Company shall settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided further that, notwithstanding the foregoing, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, the Company shall settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall be responsible for the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockADSs, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, the Holder of the Notes on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, will receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash, regardless of whether their Notes have been converted following such Regular Record Date. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Company Person in whose name any ADSs shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall become the holder of record of such ADSs only as of the close of business on the issue or delivery of shares of Common Stock on conversion of Notes pursuant heretodate the ADS Depositary registers such ADSs upon issuance; provided, however, that the Company shall endeavor to treat such Person as the holder of record of such ADSs for purposes of dividends and distributions in respect of such ADSs as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares of Common Stock be issued in a name other than that of the Holder or beneficial owner of the converted Notes, then such taxes shall be paid by such Holder or beneficial owner, and the surrendered for conversion.
(j) The Company shall not be required to issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to 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 the amount of such tax has elected (or shall have established is deemed to the satisfaction of the Company that such tax has been paid.
Appears in 1 contract
Sources: Indenture (Sea LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date June 1, 2023 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after June 1, 2023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company shall inform converting Holders through deliver a written notice (the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring 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 related Redemption Date, in such Redemption Notice or on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateJune 1, 2023, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”June 1, 2023). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement and the Company shall settle its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of converted Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and delivering shares in the case of an election of Combination Settlement, the Common Stock relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of the remainder, if any, of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in excess 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 cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the aggregate “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each US$1,000 principal portion amount of the Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as set forth hereinthe case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(fSection 14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date Date, or promptly following instructions for such conversion. A Note shall No Notice of Conversion with respect to any Notes may be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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 ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockADSs, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Company Person in whose name any ADSs shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the issue relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or delivery the last Trading Day of shares of Common Stock on the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has requested elected (or is deemed to have elected) Combination Settlement, the full number of ADSs that shares of Common Stock shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (iQIYI, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying or deliveringand, as if applicable, delivering to the case may beconverting Holder, to 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 10 60 consecutive Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring on or for which the relevant Conversion Date occurs after the 12th Company’s issuance of a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the Maturity relevant Redemption Date shall be settled using the same forms Cash Percentage, and amounts all conversions for which the relevant Conversion Date occurs on or after February 1, 2029 shall be settled using the same Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice and prior to the 12th close of business on the Scheduled Trading Day immediately preceding the Maturity relevant Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after February 1, 2029, the Company shall use the same forms and amounts of consideration Cash Percentage for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Cash Percentage with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(ii) If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the aggregate principal portion amount of the Notes being converted in cashcash in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall inform provide notice to converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring on or for which the relevant Conversion Date occurs (x) after the 12th Company’s issuance of a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the Maturity relevant Redemption Date, in such Redemption Notice or (y) on or after February 1, 2029, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayFebruary 1, 2029) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable upon conversion the Conversion Obligation in excess of the aggregate principal portion amount of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does relevant Holders are not timely make such an electioninformed of a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, as the case may be, and the Company shall settle its Conversion Obligation by paying cash in be deemed to have elected a Cash Percentage of 0% with respect of the principal portion of converted Notes and delivering shares of the Common Stock in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth hereinto such conversion.
(ciii) The For any conversion of Notes, the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount shall be determined by the Company promptly following the last Trading Day day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice as set forth in the form of the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)) to the Trustee, the Paying Agent and the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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 and, if applicable, deliver 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 or cause to be issued, and deliver (if applicable) to the converting 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 Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for but prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must shall be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made 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 Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest exists Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date referred to in clause (2) or any Fundamental Change Repurchase Date referred to in clause (3) shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date, as the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record 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 documentary, stamp or similar issue or transfer tax due fractional share of Common Stock issuable upon conversion based on the issue or delivery Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares of Common Stock on conversion of Notes pursuant hereto; provided, however, (if any) that if such documentary, stamp or similar issue or transfer tax is due because the Holder or beneficial owner of such Notes has requested that shares of Common Stock shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Veeco Instruments Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, in cash only (“Cash Settlement”) or cash per US$1,000 principal amount of the Notes being converted a and pay or deliver, as the case may be, cash, and, if applicable, ADSs, in each case at the Company’s election, in respect of the remainder, if any, of its Conversion Obligation in excess of the US$1,000 principal amount of the Notes being converted, together with cash, if applicable, in lieu of delivering any fractional ADS (“Settlement Amount” equal Fractional ADSs”) in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, subject to the sum Holder’s election to receive Ordinary Shares in lieu of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation Periodsuch ADSs, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th 50th Scheduled Trading Day immediately preceding the stated Maturity Date shall will be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after the 50th Scheduled Trading Day immediately preceding the stated Maturity Date, Date the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. Conversion Dates.
(iii) If 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 cashSettlement Method, the Company shall inform converting will deliver a written notice to Holders through so converting, the Trustee and the Conversion Agent (if other than the Trustee) of such election (a “the Settlement Notice”) Method so elected no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or in the case of any conversions occurring for which the relevant Conversion Date occurs (i) during the related Redemption Period, in the relevant Redemption Notice or (ii) on or after the 12th 50th Scheduled Trading Day before the Maturity Date, no later than the 50th Scheduled Trading Day before the Maturity Date) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method as described in this paragraph, the Company will be deemed to have elected Combination Settlement with a Specified Dollar Amount of US$1,000 per US$1,000 principal amount of Notes (such settlement method shall be the “Default Settlement Method” initially elected by the Company).
(iv) By written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to the 50th Scheduled Trading Day immediately preceding the Maturity Date, no later than at its option, change the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company will indicate is then permitted to elect in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted case, that will be paid in cash (apply to all Note conversions with a Conversion Date that is on or after the “Cash Percentage”)date the Company sends such notice. If the Company does not timely make such changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an electionability to continue to set the Specified Dollar Amount per US$1,000 principal amount of Notes at or above a specified amount, the Company shall no longer have shall, after the right to elect a Cash Percentage and date of such change or election, as the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of converted Notes and delivering shares of the Common Stock in respect of the remaindercase may be, if anynotify Holders converting their Notes, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein.
(c) The Settlement Amount shall be determined by the Company promptly following the last Trading Day of the Observation Period. Promptly after such determination of the Settlement Amount, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely notify the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(n). However, the Company may nonetheless choose to execute such an amendment at the Company’s option.
(v) Subject to Section 14.03 and Section 14.04, the cash or a combination of cash and ADSs, 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 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 40 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 US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (and cash in lieu of any Fractional ADSs).
(vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. 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 ADS, the Company shall notify the Trustee and the Conversion Agent 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 ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determinationdetermination or the distribution of such cash payable in lieu of Fractional ADSs.
(dvii) The When converting the Notes, the Holders may elect to receive Ordinary Shares listed on the Hong Kong Stock Exchange in lieu of any ADSs deliverable upon conversion by specifying in the relevant Notice of Conversion such election, provided that such election shall apply to all (but not part) of the ADSs deliverable upon conversion and the Holders make the Non-affiliate Representation in the Notice of Conversion. If a Holder elects to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, and the Company elects (or is deemed elected) to settle the relevant Conversion Obligation by Combination Settlement, in addition to any cash payment otherwise due upon such conversion pursuant to this Section 14.02, the Company shall register in the Hong Kong Share Register the Person or Persons designated in the Notice of Conversion as holder of such number of Ordinary Shares equal to in the case of a Combination Settlement, for each of the 40 consecutive Trading Days during the related Observation Period, the number of ADSs deliverable upon conversion as described in the definition of “Daily Settlement Amount” (without taking into account any Fractional ADS) in respect of such Trading Day multiplied by the number of Ordinary Shares then represented by one ADS as of the same time as the applicable Conversion Rate for such Trading Day. If the Holder is unable to make the Non-affiliate Representation as of the Conversion Date, the Holder may not issue elect to receive Ordinary Shares in lieu of any fractional ADSs deliverable upon conversion. If the Holder has requested to receive Ordinary Shares in the Notice of Conversion and made the Non-affiliate Representation, to the extent permitted under applicable law and the rules and procedures of CCASS, the Company shall take all necessary action to enable the Ordinary Shares, if any, deliverable to such Holder, in settlement upon conversion to be delivered to such Holder’s designated Hong Kong stock account in CCASS for so long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, if such Holder elects in the Notice of Conversion to receive Ordinary Shares outside of CCASS if the restrictive legend on the Notes has not been removed prior to the Conversion Date, the Company shall make share certificate or certificates representing such number of Common Stock Ordinary Shares available for collection at the office of the Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ordinary mail, at the expense, of the Person to whom such certificate or certificates are sent) such certificate or certificates to the Person and at the place specified in the Notice of Conversion.
(viii) Any ADSs deliverable upon conversion of the Notes and shall instead pay cash any Ordinary Shares represented thereby will, prior to the Resale Restriction Termination Date, bear a restrictive legend as set forth in Section 2.05(d). Any Ordinary shares deliverable in lieu of any fractional share ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and as imposed by the Hong Kong Share Registrar, and cannot be deposited into CCASS until such restrictions are removed. After removal of Common Stock issuable such restrictions on transfer and resale, any Ordinary Shares deliverable upon conversion based of the Notes, if any, will be fully fungible with the Ordinary Shares listed on the Daily VWAP Hong Kong Stock Exchange. The Company further covenants that it, at its cost, will obtain approval to list, subject to official notice of issuance upon conversion of the Common Stock Notes, such Ordinary Shares on the last Trading Day Hong Kong Stock Exchange and register in the Hong Kong Share Register in the Person or Persons designated in the Notice of Conversion as the holder of the applicable Observation PeriodOrdinary Shares in order to facilitate their listing and trading on the Hong Kong Stock Exchange.
(eix) Before If Holder wishes to receive Ordinary Shares listed for trading on the Hong Kong Stock Exchange and Holder has received, upon conversion of the Notes, ADSs that are not subject to certain transfer restrictions as set forth in Section 2.05(d) and are fungible with the ADSs, Holder may surrender such ADSs received upon conversion for cancellation and withdraw the underlying Ordinary Shares listed for trading on the Hong Kong Stock Exchange pursuant to the Deposit Agreement or the Restricted Issuance Agreement, as applicable. The Company shall take reasonable best efforts to procure that the cancellation fee (as of the date of this Indenture, US$0.05 per ADS) payable to the ADS Depositary in respect of such withdrawal will not apply; provided that the withdrawal request in submitted no later than the third Business Day after delivery of the ADS by the Company upon conversion. For the avoidance of doubt, a Holder may only receive Ordinary Shares listed for trading on the Hong Kong Stock Exchange upon surrender and cancellation of ADSs (x) that have been issued without certain transfer restrictions as set forth in Section 2.05(d) after the Resale Restriction Termination Date or (y) after certain transfer restrictions as set forth in Section 2.05(d) have been removed from Restricted Conversion ADSs (as defined in the Restricted Issuance Agreement) issued upon conversion of the Notes.
(x) Pursuant to the terms of the Deposit Agreement and the Restricted Issuance Agreement, the ADS Depositary will accept the surrender of any Restricted Conversion ADSs (as defined in the Restricted Issuance Agreement)issued upon conversion of the Notes for the purpose of Restricted ADS cancellation and withdrawal of the Ordinary Shares represented thereby subject to receipt by the ADS Depositary of (x) applicable Withdrawal Certification in the form set out in the Restricted Issuance Agreement, and (y) the applicable fees for cancellation of Restricted ADSs and withdrawal of the Ordinary Shares. Restricted ADS cancellations are permitted, but only for withdrawal of the Ordinary Shares registered on the Principal Share Register and are subject to Withdrawal Certification requirements set out in the Restricted Issuance Agreement. Upon cancellation of Restricted ADSs, the ADS Depositary will arrange for delivery of the corresponding Ordinary Shares to the Holder’s order only on the Principal Share Register.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, unless such Holder intends to elect to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion if applicable, comply with the procedures of the Depositary in effect at that time andtime, if required, pay funds equal the procedures agreed between the Company and the ADS Depositary with respect to any ADSs issued upon conversion of the Notes prior to the Special Interest, if any, payable on the next Special Interest Payment Resale Restriction Termination Date to which such Holder is not entitled (including delivery of notice as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f) and (ii) in the case of a Physical Note (1) complete and manually sign a notice in the form of the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”), (2) deliver such notice, which is irrevocable, and such Physical Note, duly endorsed to the Company or in blank, at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(fattached hereto) and (52) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h), and (ii) in the case of a Physical Note (1) complete and manually sign the Notice of Conversion on the back of the Note, or a facsimile of the Notice of Conversion, including (x) if applicable, and provided that such Holder makes to the Company the Non-affiliate Representation, its election to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion and (y) if such Holder prefers to receive the Ordinary Shares through the CCASS after the Resale Restriction Termination Date, the Holder’s stock account in CCASS; (2) deliver the duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent, the Company and, unless the Holder has elected to receive Ordinary Shares in lieu of ADS, 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 ADSs to be delivered upon settlement of the Conversion Obligation to be registered, and, including (x) if applicable, provided that the Holder makes to the Company the Non-affiliate Representation, the Holder’s election to receiving Ordinary Shares in lieu of any ADSs deliverable upon conversion and, (y) if the Holder prefers to receive the Ordinary Shares through CCASS after the Resale Restriction Termination Date, its Hong Kong stock account in CCASS, and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 on the Conversion Date for such conversion. A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(f) 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 tax, duty or similar charge required by law that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount 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 Special Interest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect of the Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the Conversion Date shall 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 Special Interest, if any, shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special Interest, Holders of such Notes at the close of business on such Regular Record Date shall receive the Special Interest, if any, payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the corresponding Special Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, payable on the Notes so converted; provided that no such payment need be made (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the corresponding Special Interest Payment Date; or (3) to the extent of any overdue Special Interest, if any overdue Special Interest exists at the time of conversion with respect to such Note.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of shares of Common Stock on conversion of Notes pursuant hereto; provided, however, that if such documentary, stamp or similar issue or transfer tax is due because the Holder or beneficial owner of such Notes has requested that shares of Common Stock be issued in a name other than that of the Holder or beneficial owner of the converted Notes, then such taxes shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
Appears in 1 contract
Sources: Indenture (Trip.com Group LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Business Day prior to the related Tax Redemption Date or Optional Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date April 1, 2024 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Notes but prior to the close of business on the second Business Day immediately preceding prior to the Maturity related Tax Redemption Date or Optional Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after April 1, 2024, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company shall inform converting Holders through deliver a written notice (the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring 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 Business Day prior to the related Tax Redemption Date or Optional Redemption Date, as applicable, in such Redemption Notice or on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateApril 1, 2024, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”April 1, 2024). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement and the Company shall settle its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of converted Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and delivering shares in the case of an election of Combination Settlement, the Common Stock relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of the remainder, if any, of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in excess 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 cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the aggregate “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each US$1,000 principal portion amount of the Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as set forth hereinthe case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, (1) comply with the procedures of the Depositary in effect at that time andand the procedures agreed between the Company and the Depositary with respect to any ADSs issued upon conversion of the Notes, (2) if required, pay funds equal to the any Special Interest, if any, Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h), and (3) and, if required, pay any taxes or duties, if any, duties for which a Holder is responsible as required by Section 12.02(f) described above and (ii) in the case of a Physical Note (1) complete and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date Date, or promptly following instructions for such conversion. A Note shall No Notice of Conversion with respect to any Notes may be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above and any other procedures for conversion set forth in this Indenture. 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 ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall also pay and/or indemnify each Holder and beneficial owners of the Notes and/or ADSs issuable upon conversion of the Notes for applicable fees and expenses payable to, or withheld by, the Depositary of the ADSs (including, for the avoidance of doubt, by means of a reduction in any amount or property payable or deliverable in respect of any ADSs or in the value of deposited amounts or property represented by any ADSs) for the issuance of all ADSs deliverable upon conversion (including, with respect to any ADSs subject to restricted CUSIP and/or restrictive legends upon issuance, any of the foregoing with respect to the removal of any such restriction from such ADSs).
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, on the note to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common StockADSs, accrued and unpaid Special Interest, if any, shall will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date for and prior to the payment open of business on the corresponding Special InterestInterest Payment Date, Holders of such Notes at as of the close of business on such Regular Special Interest Record Date shall will receive the full amount of Special Interest, if any, payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the opening open of business on the corresponding immediately following Special Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of Special Interest, if any, Interest payable on the Notes so converted; , if any (regardless of whether the converting Holder was the holder of record on the corresponding Special Interest Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Special Interest Record Date immediately preceding the Maturity Date; Date; (2) if the Company has specified a Tax Redemption Date or an Optional Redemption Date that is after a Special Interest Record Date and on or prior to the second Business Day immediately succeeding the corresponding Special Interest Payment Date (or, if such Special Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Special Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date; Date (or, if such Special Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Special Interest Payment Date); or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Company Person in whose name any ADSs shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the issue relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or delivery the last Trading Day of shares of Common Stock on the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has requested elected (or is deemed to have elected) Combination Settlement, the full number of ADSs that shares of Common Stock shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Pinduoduo Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(cSection 14.03(b) and Section 12.06(cSection 14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 40 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date May 15, 2029, shall be settled using the same forms and amounts of consideration. Prior Except for any conversions of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions of Notes for which the relevant Conversion Date occurs on or after May 15, 2029, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateMay 15, 2029, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayMay 15, 2029) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle be deemed to have elected to settle, and the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. The Company shall separately provide to the Trustee and the Conversion Agent (if other than the Trustee) in writing any notice contemplated by this clause (i).
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(hSection 14.02(h) andand such conversion shall be irrevocable after such Holder has complied with the procedures of the Depositary in effect at such time unless the Company, if requiredin its sole and absolute discretion, pay taxes or duties, if any, as required by Section 12.02(f) agrees to permit such Holder to withdraw such conversion and such withdrawal is reasonably feasible pursuant to the procedures of the Depositary in effect at such time and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice (unless the Company, in its sole and absolute discretion, agrees to permit such Holder to withdraw such notice) to the form of Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)) at the Corporate Trust Office or at the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(hSection 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 Article 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note any Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 converting 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 conversionconversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes (to, but not including, the corresponding Interest Payment Date) on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made required (1) for conversions of Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Redemption Date or Fundamental Change Repurchase Date described in clause (2) and (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Fluor Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(cSection 14.03(b) and Section 12.06(cSection 14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $1,000 principal amount of Notes being converted a “Settlement Amount” converted, an amount equal to the sum of the Daily Settlement Amounts for each of the 10 60 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring on or of Notes for which the relevant Conversion Date occurs after the 12th Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the Maturity related Redemption Date, and all conversions of Notes for which the relevant Conversion Date occurs on or after November 15, 2030, shall be settled using the same forms and amounts of consideration. Prior Except for any conversions of Notes for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice but prior to the 12th Scheduled Trading Day immediately preceding the Maturity related Redemption Date, and any conversions of Notes for which the relevant Conversion Date occurs on or after November 15, 2030, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring on or of Notes for which the relevant Conversion Date occurs (x) after the 12th date of issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the Maturity related Redemption Date, in such Redemption Notice or (y) on or after November 15, 2030, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayNovember 15, 2030) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. For the avoidance of doubt, the Company’s failure to make a timely election of the Cash Percentage, as described above, will not constitute a Default under this Indenture.
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(fSection 14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(hSection 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 Article 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered an Optional Repurchase Notice or a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes, unless and not until such Holder has validly withdrawn such Optional Repurchase Notice or Fundamental Change Repurchase Notice Notice, as the case may be, in accordance with Section 13.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 converting 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for accrued and unpaid Special Interest, if any. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common StockNotes, accrued and unpaid Special Interest, if any, shall will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date for and prior to the payment open of business on the corresponding Special InterestInterest Payment Date, Holders of such Notes at as of the close of business on such Regular Special Interest Record Date shall will receive the full amount of Special Interest, if any, payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the opening open of business on the corresponding immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of any Special Interest, if any, Interest payable on the Notes so convertedconverted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder on such Special Interest Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding close of business on March 1, 2031, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest 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 March 1, 2031 (if and to the extent any Special Interest is payable on the Maturity Date), any Redemption Date described in the clause (2) above and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full Special Interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted following such Special Interest Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Ormat Technologies, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Subject to this Section 12.03(c14.02, Section 14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the relevant Observation PeriodCombination Settlement”), at its election, as set forth in this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date June 15, 2026 shall be settled using the same forms and amounts Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of consideration. Prior a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after June 15, 2026, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Trading Days. If Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company shall inform converting Holders through deliver a written notice (the Trustee of such election (a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the Scheduled close of business on the Trading Day immediately following the related relevant Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs during the related Redemption Period, in such Redemption Notice or on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateJune 15, 2026, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading Day) and the Company will indicate in the Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”June 15, 2026). If the Company does not timely make such an electionelect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall settle its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of converted Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and delivering shares in the case of an election of Combination Settlement, the Common Stock relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of the remainder, if any, of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in excess such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be US$1,000. By written notice to the aggregate Holders, the Trustee and the Conversion Agent, the Company may, prior to June 15, 2026, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or minimum Specified Dollar Amount), or eliminate the Company’s right to elect a Settlement Method, to apply all conversions for which the relevant Conversion Date occurs subsequent to the date of delivery of such notice; provided that any such election that is made during a Redemption Period or a Distribution Conversion Period shall not apply to any conversions of Notes called for redemption with Conversion Dates that occur during such Redemption Period or conversions during such Distribution Conversion Period (as applicable).
(iv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each US$1,000 principal portion amount of the Notes being converted a number of ADSs equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the 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 set forth hereinthe case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(cv) The Daily Settlement Amount Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and14.02(h), and if required, pay taxes all transfer or dutiessimilar taxes, if any, as required by Section 12.02(f) any and (ii) in the case of a Physical Note (1) complete and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h), and if required, pay all transfer or similar taxes, if any. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date Date, or promptly following instructions for such conversion. A Note shall No Notice of Conversion with respect to any Notes may be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to 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, with respect to any Conversion Date occurring during a Redemption Period, the Company shall settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided further that, notwithstanding the foregoing, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, the Company shall settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall be responsible for the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 Special Interestinterest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockADSs, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, the Holder of the Notes on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, will receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash, regardless of whether their Notes have been converted following such Regular Record Date. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Company Person in whose name any ADSs shall pay any documentary, stamp or similar issue or transfer tax due be issuable upon conversion shall become the holder of record of such ADSs only as of the close of business on the issue or delivery of shares of Common Stock on conversion of Notes pursuant heretodate the ADS Depositary registers such ADSs upon issuance; provided, however, that the Company shall endeavor to treat such Person as the holder of record of such ADSs for purposes of dividends and distributions in respect of such ADSs as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares of Common Stock be issued in a name other than that of the Holder or beneficial owner of the converted Notes, then such taxes shall be paid by such Holder or beneficial owner, and the surrendered for conversion.
(j) The Company shall not be required to issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to 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 the amount of such tax has elected (or shall is deemed to have established to the satisfaction of the Company that such tax has been paid.elected) Combinatio
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(cSection 14.03(b) and Section 12.06(cSection 14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 40 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date August 15, 2026, shall be settled using the same forms and amounts of consideration. Prior Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after August 15, 2026, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateAugust 15, 2026, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayAugust 15, 2026) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. The Company shall separately provide to the Trustee and the Conversion Agent (if other than the Trustee) in writing any notice contemplated by this clause (i).
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the any Special Interest, if any, Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(fSection 14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)) at the Corporate Trust Office or at the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the any Special Interest, if any, Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(hSection 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 Article 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note 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 Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 converting 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 conversionconversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interest, if any, except as set forth below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common StockNotes, any accrued and unpaid Special Interest, if any, shall Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date for the payment of Special Interest, Holders of such Notes at as of the close of business on such Regular Special Interest Record Date shall will receive the full amount of any Special Interest, if any, Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the opening open of business on the corresponding immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of any Special Interest, if any, Interest payable on the Notes so convertedconverted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Special Interest Record Date); provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding November 1, 2026, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (34) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on November 1, 2026 (if and to the extent Special Interest is payable on the Maturity Date) and any Redemption Date or Fundamental Change Repurchase Date described in clause (2) and (3) of the immediately preceding sentence shall receive the full Special Interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following the applicable Special Interest Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the related Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Affirm Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(c14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 20 consecutive Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring on or after of Notes for which the 12th Scheduled Trading Day immediately preceding relevant Conversion Date occurs during the Maturity Date Conversion Period, the Uniform Conversion Period or a Redemption Conversion Period, as the case may be, shall be settled using the same forms and amounts of consideration. Prior to Except for any conversions of Notes for which the 12th Scheduled Trading Day immediately preceding relevant Conversion Date occurs during the Maturity DateConversion Period, the Uniform Conversion Period or a Redemption Conversion Period, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or in respect of any conversions for which the Conversion Date occurs during a Redemption Conversion Period, the Uniform Conversion Period, or the Maturity Conversion Period), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Trustee of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring on or after for which the 12th Scheduled Trading Day immediately preceding relevant Conversion Date occurs (x) during a Redemption Conversion Period, in the Maturity Daterelevant Redemption Notice, (y) during the Uniform Conversion Period, no later than July 15, 2025 or (z) during the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayMaturity Conversion Period, no later than July 15, 2037) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein.
(cii) The Daily Settlement Amount Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last Trading Day day of the relevant Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(f14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of 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) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice Notice, as the case may be, in accordance with Section 13.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below, and the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if the Conversion Date for Notes are converted is after the close of business on a Regular Record Date for the payment of Special InterestDate, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the full amount of Special Interest, if any, interest payable on the Notes so converted; provided that no such payment need shall be made required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) for conversions following the Regular Record Date immediately preceding October 15, 2025; (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; (4) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (35) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding October 15, 2025 and the Maturity Date shall receive the full interest payment due on October 15, 2025 or the Maturity Date, as the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay any documentary, stamp or similar issue or transfer tax due on Person in whose name the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
Appears in 1 contract
Sources: Indenture (Meritor Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(c14.03(b) and Section 12.06(c14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to Holders 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 10 20 VWAP Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (i) of this Section 14.02.
(bi) All conversions occurring for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date February 1, 2027 shall be settled using the same forms and amounts of consideration. Prior Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the 12th Scheduled Trading Day immediately preceding Notes but prior to the Maturity Daterelated Redemption Date and any conversions for which the relevant Conversion Date occurs on or after February 1, 2027, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Conversion Agent (with a copy to the Trustee if not the Conversion Agent) of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateFebruary 1, 2027, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayFebruary 1, 2027) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein.
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such thereafter, and in any event within one Business Day of determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of 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 AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of 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.
(di) The Company shall not issue any fractional share To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.such beneficial interest must:
(eA) Before any Holder of a Note shall be entitled to convert the same 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, Applicable Procedures;
(B) if required, pay funds equal to the all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(C) if required, pay funds equal to any Special Interest, if any, Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) 14.02(g); and, if required, pay taxes or duties, if any, as required by Section 12.02(f) and
(ii) in To convert a Certificated Note, or when required by Applicable Procedures, the case of a Physical Note Holder must:
(1A) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”), (2) deliver such notice, which is irrevocable, and such Physical Note, duly endorsed Note to the Company or in blank, at the office of the Conversion Agent, ;
(3B) if required, furnish appropriate endorsements and transfer documents, ;
(4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5C) if required, pay funds equal to the all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(D) if required, pay funds equal to any Special Interest, if any, Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(g). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 14 on the Conversion Date for such conversion. A Note shall be deemed to have been converted immediately prior to conversion not later than the close of business on next Business Day after the date (the “Conversion Date”) that the . If a Holder has complied with the relevant procedures in the immediately preceding sentence. No Note may be surrendered for conversion by a Holder thereof if such Holder has also already delivered a Fundamental Change Repurchase Notice with respect to the Company in respect of a Note, such Holder may not surrender such Note and not 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 13.0215.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase shall terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in Section 14.02(b) above. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any tax, duty transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(ge) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any shares of Common Stock upon conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to facilitate the delivery of the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversionconversion of a Note, a the converting Holder shall not receive any separate cash payment for representing accrued and unpaid Special Interest, if any, except as set forth in the paragraph below. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid Special Interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common StockNotes, accrued and unpaid Special Interest, if any, shall will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoingimmediately preceding paragraph, if Notes are converted after the close of business on a Regular Special Interest Record Date for Date, but prior to the payment open of business on the immediately following Special InterestInterest Payment Date, Holders of such Notes at the close of business on such Regular Special Interest Record Date shall receive the full amount of Special Interest, if any, payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the opening open of business on the corresponding immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of any Special Interest, if any, Interest payable on the Notes so convertedconverted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided that no such payment need be made made:
(1i) if the Notes are surrendered for conversions conversion following the Regular Record Date immediately preceding the Maturity Date; close of business on April 15, 2027;
(2ii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date;
(iii) if the Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Special Interest Payment Date; or or
(3iv) to the extent of any overdue Special Interest, if any overdue Special Interest exists at the time of conversion with respect to such NoteNotes. Therefore, for the avoidance of doubt, all Holders of record on April 15, 2027, or on the Special Interest Record Date immediately preceding any Fundamental Change Repurchase Date or any Redemption Date described in clause (ii) or (iii) above, as the case may be, shall receive and retain the full Special Interest payment, if any, due on the Maturity Date or other applicable Special Interest Payment Date regardless of whether their Notes have been converted following April 15, 2027 or such other Special Interest Record Date, as the case may be.
(h) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall become the holder of record of such shares as of the close of business on the last VWAP 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; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Special Interest Record Date and the corresponding Special Interest Payment Date, the Holder of record as of the close of business on such Special Interest Record Date shall have the right to receive the Special Interest payable on such Special Interest Payment Date, in accordance with Section 14.02(g).
(i) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any documentary, stamp or similar issue or transfer tax due fractional share of Common Stock issuable upon conversion in an amount based on the issue Daily VWAP on the last VWAP Trading Day of the relevant Observation 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 Settlement Amounts for the relevant Observation Period and, subject to the last paragraph of Section 14.02(b), any fractional shares remaining after such computation shall be paid in cash.
(j) Upon surrender by a Holder of its Notes for conversion, the Company may, at its election (an “Exchange Election”), arrange to have such Notes exchanged in lieu of conversion by a financial institution designated by the Company (the “Designated Financial Institution”). If the Company makes an Exchange Election, no later than the second Business Day immediately following the relevant Conversion Date, the Company must deliver (or delivery cause the Conversion Agent to deliver), such Notes surrendered for conversion to the Designated Financial Institution for exchange in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution must agree to timely pay and deliver, as the case may be, in exchange for such Notes, cash up to the aggregate principal amount of such Notes and cash, shares of Common Stock on conversion or a combination of Notes pursuant hereto; providedcash and shares of Common Stock, howeverat the Company’s election, that in respect of the remainder, if such documentaryany, stamp or similar issue or transfer tax is due because of the Holder or beneficial owner Conversion Obligation in excess of the aggregate principal amount of such Notes has requested that shares would otherwise be due upon conversion as described in Section 14.02(a) (the “Conversion Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of Common Stock be issued in a name business on the Trading Day following the relevant Conversion Date, notify the Trustee, the Conversion Agent (if other than the Trustee) and Holder surrendering Notes for conversion in writing that of the Holder or beneficial owner of Company has made the converted Notes, then such taxes shall be paid by such Holder or beneficial owner, Exchange Election and the Company shall notify the Designated Financial Institution of the type of Conversion Consideration to be paid and delivered, as the case may be, and the relevant deadline for delivery of the relevant Conversion Consideration due upon conversion. Any Notes exchanged by the Designated Financial Institution shall remain outstanding, subject to the Applicable Procedures. If the Designated Financial Institution agrees to accept any Notes for exchange but does not timely deliver the related Conversion Consideration, or if such Designated Financial Institution does not accept the Notes for exchange, the Company shall deliver the relevant Conversion Consideration as if the Company had not made an Exchange Election. The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require the financial institution to accept any Notes (unless the financial institution has separately made an agreement with the Company). The Company may, but shall not be required to issue or deliver obligated to, enter into a separate agreement with any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.Designated Financial In
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Except as provided in Section 12.03(cSection 14.03(b) and Section 12.06(cSection 14.07(a), upon conversion of any Note, on the third Scheduled Trading second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall settle its Conversion Obligation as set forth in this Section 12.02. Upon conversion, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to Holders 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 10 40 Trading Days during the relevant Observation PeriodPeriod for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02.
(bi) All conversions occurring of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity Date February 15, 2029, shall be settled using the same forms and amounts of consideration. Prior to Except for any conversions of Notes for which the 12th Scheduled Trading Day immediately preceding the Maturity Daterelevant Conversion Date occurs on or after February 15, 2029, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Trading DaysConversion Dates. If If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be), 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 cashcash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (a the “Settlement Notice”) no later than the Scheduled close of business on the Trading Day immediately following the related Conversion Date (or or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs on or after the 12th Scheduled Trading Day immediately preceding the Maturity DateFebruary 15, 2029, no later than the Scheduled Trading Day immediately preceding such 12th Scheduled Trading DayFebruary 15, 2029) and the Company will shall indicate in the such Settlement Notice the percentage of each share issuable upon conversion the Conversion Obligation in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not timely make such an electionelect a Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of the Common Stock in respect of the remainderremainder (other than cash in lieu of any fractional share), if any, of its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. For the avoidance of doubt, the Company’s failure to make a timely election of the Cash Percentage, as described above, will not constitute a Default under this Indenture.
(cii) The Daily Settlement Amount Amounts (if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last Trading Day day of the Observation Period. Promptly after such determination of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountAmounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(db) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock on the last Trading Day of the applicable Observation Period.
(e) Before Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert the same a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h) and, if required, pay taxes or duties, if any, as required by Section 12.02(fSection 14.02(h) and (ii) in the case of a Physical Note (1) complete and complete, manually sign a and deliver an irrevocable notice to the Conversion Agent as set forth in the form of the Form of Notice of Conversion (or a facsimile facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”)) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) deliver surrender such notice, which is irrevocable, and such Physical NoteNotes, duly endorsed to the Company or in blankblank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, documents and (4) if required, pay all transfer or similar taxes, if any, as required by Section 12.02(f) and (5) if required, pay funds equal to the Special Interest, if any, interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 12.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 12 Article 14 on the Conversion Date for such conversion. A Note shall be deemed No Notice of Conversion with respect to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the relevant procedures in the immediately preceding sentence. No Note any Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Note Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 13.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(fc) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 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 taxdocumentary, duty stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interestinterest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest, if any. The Company’s payment and delivery, as the case may be, to the Holder of cash and shares of Common Stock, if any, in respect settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interestinterest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid Special Interestinterest, 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 StockNotes, accrued and unpaid Special Interest, if any, shall interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for and prior to the payment open of Special Interestbusiness on the corresponding Interest Payment Date, Holders of such Notes at as of the close of business on such Regular Record Date shall will receive the Special Interest, if any, full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening open of business on the corresponding Special immediately following Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder on such Regular Record Date); provided that no such payment need shall be made required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (3) to the extent of any overdue Special InterestDefaulted Amounts, if any overdue Special Interest Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Company shall pay Person in whose name any documentary, stamp or similar issue or transfer tax due on the issue or delivery of shares of Common Stock shall be issuable upon conversion shall be treated as a shareholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes pursuant hereto; providedNotes, however, that if such documentary, stamp or similar issue or transfer tax is due because the Person shall no longer be a Holder or beneficial owner of such Notes has requested that shares surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, the full number of shares, if any, that shall be issued in a name other than that upon conversion thereof shall be computed on the basis of the Holder or beneficial owner of aggregate Daily Settlement Amounts for the converted Notes, then relevant Observation Period and any fractional shares remaining after such taxes computation shall be paid by such Holder or beneficial owner, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until such Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paidin cash.
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Sources: Indenture (Centerpoint Energy Inc)