Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after August 15, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after August 15, 2029, no later than the close of business on the Business Day immediately preceding August 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 2 contracts

Sources: Indenture (Alignment Healthcare, Inc.), Indenture (Alignment Healthcare, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15~~June 1, ~~2029~~ 2030 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~Period, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~June 1, ~~2029~~2030, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or ~~one~~ any conversions of Called Notes for which the ~~periods~~ relevant Conversion Date occurs during the related Redemption Period, or for which the relevant Conversion Date occurs on or after September 1, 2030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the ~~Trustee and~~ Trustee, the Conversion Agent ~~(if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) ~~on or after~~ during the ~~date of issuance of a~~ Redemption ~~Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice~~ Period or (B) on or after ~~August 15~~June 1, ~~2029~~2030, no later than the close of business on the Business Day immediately preceding ~~August 15~~June 1, ~~2029~~ 2030 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding ~~August 15~~June 1, ~~2029~~2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the close of business on the Trading Day immediately following the relevant Conversion Date, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to the provisions set forth in this paragraph, then, concurrently with providing notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election, the Company shall either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 20 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase ~~Notice~~ Notice, as the case may be, in accordance with Section 15.03. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 2 contracts

Sources: Indenture (Twenty One Capital, Inc.), Indenture (Twenty One Capital, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15~~March 1, ~~2029~~ 2031 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~March 1, ~~2029~~2031, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August 15~~March 1, ~~2029~~2031, no later than the close of business on the Business Day immediately preceding ~~August 15~~March 1, ~~2029~~ 2031 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 2 contracts

Sources: Indenture (MARA Holdings, Inc.), Indenture (Marathon Digital Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) . (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions of Notes (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (ya) for which the relevant Conversion Date occurs on or after ~~August~~ December 15, ~~2029 and~~ 2025, (zb) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs occurring after ~~the Company’s issuance of~~ a Redemption Notice ~~with respect to the Notes but~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, ~~(x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii)~~ and (ziii) ~~for any conversions~~ following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, shall be settled using the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock). Except for (i) any conversions for which the relevant Conversion Date occurs on or after December 15, 2025, (ii) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and (iii) any conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii) (A~~ii) Subject to the Company’s irrevocable election of a Settlement Method ~~pursuant to~~ as described in this Section ~~14.02(a)(iii)(B~~14.02(a)(ii), ~~if, in respect of any Conversion Date (or one of~~ if the ~~periods described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company,~~ shall deliver ~~such Settlement Notice~~ notice to ~~the Trustee and~~ Holders through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee) and the converting Holders~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ after December 15, 2025, no later than December 15, 2025, or in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after ~~the date of issuance of~~ a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the ~~related~~ relevant Redemption Date, in ~~such Redemption~~ the Notice ~~or (B) on or after August 15, 2029, no later than the close~~ of business on the Business Day immediately preceding August 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein)Redemption. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~the relevant~~ that Conversion Date ~~(or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in~~ converting Holders through the ~~case~~ Conversion Agent of ~~an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes. 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~~. (A)~~ . By notice to ~~the~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ may, prior to the close of business on the Scheduled Trading Day immediately preceding ~~August~~ December 15, ~~2029~~2025, at its option, irrevocably elect to satisfy its Conversion ~~Obligation~~ Obligations with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to ~~the~~ delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on ~~the Company’s~~ its website or disclose the same in a ~~current report~~ Current Report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)Commission. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). If more than one Note shall be surrendered for conversion ~~pursuant~~ at any one time by the same Holder, the Conversion Obligation with respect to ~~Section 14.02(j))~~such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last ~~day~~ VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h)~~ 14.02(g); and~~, if required, pay all transfer or similar taxes, if any, and~~ (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, ~~manually~~ sign (by manual, electronic or facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or delivery by electronic ~~communication in PDF format~~mail of a pdf thereof) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion ~~Obligation~~ Obligations to be registered, ~~(2)~~ and surrender such ~~Notes, duly endorsed~~ Note to the ~~Company or in blank (and accompanied by appropriate endorsement and transfer documents),~~ Conversion Agent at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), ; (3B) if required, furnish appropriate endorsements and transfer documents, ; (4C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and (5) if required, pay all transfer or similar taxes, if any~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such ▇▇▇▇▇▇~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be ~~surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect~~ deemed to ~~such~~ have delivered a notice of its election not have its Notes ~~shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby)~~ so ~~surrendered~~redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) if the Company elects Physical Settlement, the second Business Day immediately following the relevant Conversion ~~Date, if the Company elects Physical Settlement (provided that, with respect to~~ Date for any conversion ~~following~~ occurring prior to the Regular Record Date immediately preceding the Maturity ~~Date where Physical Settlement applies~~Date, ~~the Company shall settle any such conversion~~ or on the Maturity Date for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or, (ii) if the ~~Maturity Date is not a Business Day~~Company elects Combination Settlement, ~~the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on~~ the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation ~~on such Global Note~~ in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Notes surrendered for conversion are subject to Redemption by the Company ~~has specified~~ on a Redemption Date that is after a Regular Record Date and on or prior to the ~~second Scheduled Trading~~ Business Day immediately following the corresponding Interest Payment Date; ; (3iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. ~~Therefore, for~~ For the avoidance of doubt, all Holders ~~of record as of the close of business~~ on the Regular ~~Rec~~Record Date immediately preceding the Maturity Date, any Redemption Date as described in clause (ii) above, and any Fundamental Change Repurchase Date shall receive and retain the full interest payment due on the Maturity Date or other appl

Appears in 1 contract

Sources: Indenture (MACOM Technology Solutions Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of ~~Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of~~ the Class A Common Stock ~~in accordance with subsection (j) of this Section 14.02~~ (“Physical Settlement”) or a combination of cash and shares of ~~Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of~~ the Class A Common Stock ~~in accordance with subsection (j) of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions ~~(x)~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the ~~close of business on the second Scheduled Trading Day immediately preceding the~~ related Redemption ~~Date~~ Date, and all conversions for which the relevant conversion date occurs on or after September 15, 2027 shall be settled using the same Settlement Method (yincluding the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) as all other conversions for which the relevant Conversion Date occurs on or after ~~August~~ September 15, ~~2029 and~~ 2027. Except for any conversions (zA) ~~following the Company’s~~ for which irrevocable ~~election of a Settlement Method~~ settlement method applies pursuant to Section ~~14.02(a)(iii)(B)~~14(a)(iii) below, ~~in each case shall be settled using the same Settlement Method.~~ (iiB) ~~Except (w) for any conversions~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~with respect to the Notes but~~ by prior to the ~~close of business on the second Scheduled Trading Day immediately preceding the~~ related Redemption ~~Date,~~ Date or (xiii) ~~for any conversions~~ for which the relevant ~~Conversion Date~~ conversion date occurs on or after ~~August~~ September 15, ~~2029~~2027, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~(A) Subject to~~ If the ~~Company’s irrevocable election of~~ Company has not delivered a ~~Settlement Method~~ notice pursuant to Section ~~14.02(a)(iii)(B), if, in respect of any Conversion Date (or one of~~ 14.02(a)(iii) and the ~~periods described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company,~~ shall deliver ~~such Settlement Notice~~ notice to ~~the Trustee and~~ Holders through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee) and the converting Holders~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after August September 15, ~~2029~~2027, no later than ~~the close of business on the Business Day immediately preceding August~~ September 15, ~~2029 or~~ 2027 (~~y) for which~~ in each case, the ~~Company has irrevocably elected Physical~~ “Settlement ~~pursuant to Section 14.01(b)(ii), in the related notice described therein~~Method Election Deadline”). If the Company has not made an irrevocable election of a settlement method pursuant to Section 14.02(a)(iii) and the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and~~ the Company shall be deemed to have elected a Settlement Method (a “Default Settlement Method”) of Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify the relevant Settlement Method and~~ in ~~the case~~ respect of ~~an election~~ any conversion but does not timely notify converting Holders of ~~Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes~~. If~~ , or the Company ~~delivers a Settlement Notice electing~~ is deemed to have elected Combination ~~Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice~~Settlement, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (Aiii) By written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ will have the right, prior to ~~the close of business on the Scheduled Trading Day immediately preceding August~~ September 15, ~~2029~~2027, at its option, ~~irrevocably~~ to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect or elect to ~~satisfy its Conversion Obligation with respect~~ irrevocably fix the Settlement Method to ~~the Notes through~~ any Settlement Method that it is then permitted to elect (including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of ~~Notes~~ the notes of ~~at least~~ $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice), in each case, that will apply for all Conversion Dates occurring subsequent to ~~the~~ delivery of such ~~notice and for which another Settlement Method does not otherwise apply~~notice. If the Company changes the Default Settlement Method or elects to irrevocably ~~elects~~ fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a ~~specific~~ specified amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement ~~Method~~ Method, as applicable, on the Company’s website or disclose the same in a press release or a current report on Form 8-K (or any successor form) that is ~~filed with the Commission (and make such determination of such Specified Dollar Amount on or prior~~ furnished to the ~~dates set forth above~~ 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 of a ~~Combination~~ Default Settlement ~~as if~~ Method or an irrevocable ~~election had not otherwise occurred~~election, if made, will be effective without the need to amend this Indenture or if the Notes, including pursuant to Section 10.01(i). Notwithstanding the foregoing, the Company ~~does not make~~ may nonetheless choose to execute such ~~determination by such date~~ an amendment at the ~~Specified Dollar Amount shall be $1,000 per $1,000 principal amount~~ Company’s option without the consent of ~~Notes)~~the Holders. (iv) The cash, shares of Class A Common Stock or combination of cash and shares of Class A Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (plus cash in lieu of any fractional share of Class A Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or and deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Class A Common Stock issuable upon ~~conversion pursuant to Section 14.02(j~~conversion)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so ~~surrendered~~surrendered for conversion. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must: (A) comply with the Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and (ii) To convert a Certificated Note, the Holder must: (A) complete, sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) to the Conversion Agent and surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office of the Conversion Agent; (B) if required, furnish appropriate endorsements and transfer documents; (C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. To the extent the Company enters into any note hedge transaction (or any other hedging transaction) with one or more counterparties in connection with the offering and sale of the Notes, the Trustee (and if different, the Conversion Agent) agree to notify each such counterparty of each such conversion, in such manner and containing such information as may be directed by the Company from time to time. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b~~Section 14.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on on: (i) the second Business Day immediately following the relevant Conversion Date (or, if earlier, the Maturity Date), if the Company elects Physical ~~Settlement~~ Settlement; or (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to have elected Combination Settlement. If any shares of Class A Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Class A Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Class A Common Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation ~~on such Global Note~~ in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing any accrued and unpaid ~~interest~~Special Interest, if any, except as set forth in the paragraph below. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and any accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date. As a result, any accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common Stock, any accrued and unpaid ~~interest will~~ Special Interest, if any, shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date for the payment of Special Interest, but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such ~~Regular~~ Special Interest Record Date ~~will~~ shall receive the full amount of ~~interest~~ Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular RecSp

Appears in 1 contract

Sources: Indenture (DraftKings Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions of Notes (xa) for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of~~ December 15, 2027, (b) occurring after a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date ~~(y) for which the relevant Conversion Date occurs on or after August 15, 2029~~ and (ziii) following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, shall be settled using the same Settlement ~~Method.~~ Method (iiincluding the same relative proportion of cash and/or shares of Common Stock). Except for (1) ~~Except (w) for~~ any conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance~~ December 15, 2027, (2) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice ~~with respect to the Notes but~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, ~~(x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii)~~ and (z3) ~~for~~ any ~~conversions~~ conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock in the case of Combination Settlement) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~(A) Subject to~~ Unless the ~~Company’s irrevocable election of a~~ Company has irrevocably fixed the Settlement Method ~~pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or one of the periods~~ as described in ~~the third immediately succeeding set of parentheses, as the case may be~~this Section 14.02(ii), the Company ~~elects~~ shall send or cause to ~~deliver a~~ be sent written notice ~~(the “Settlement Notice”)~~ of the ~~relevant~~ Settlement Method determined in ~~respect of such Conversion Date (or such period~~accordance with this Section 14.02(a) to Holders, ~~as the case may be), the Company, shall deliver such Settlement Notice to~~ the Trustee and the Conversion Agent (if other than the Trustee) ~~and the converting Holders~~ (a) no later than ~~the close of business~~ 1:00 p.m., New York City time, on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date~~ Date, (~~or,~~ b) in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ on or after December 15, 2027, no later than December 15, 2027 or (c) in the ~~date~~ case of ~~issuance~~ any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such ~~Redemption~~ Notice ~~or (B) on or after August 15, 2029, no later than the close~~ of business on the Business Day immediately preceding August 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein)Redemption. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and~~ the Company shall be deemed to have elected the “Default Settlement Method” (as defined below). If the Company elects Combination Settlement ~~in respect~~ but does not timely notify the Conversion Agent 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~~amount, ~~the relevant Settlement Notice shall indicate the~~ such 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~~. (A) By~~ . The “Default Settlement Method” will initially be Combination Settlement with a Specified Dollar Amount of $1,000. However, the Company may, from time to time, change the Default Settlement Method by sending written notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company ~~may prior~~ may, by sending notice to the ~~close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option~~Holders, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect that will apply to ~~satisfy its Conversion Obligation with respect to the Notes through Combination Settlement~~ all conversions with a ~~Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all~~ Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, Date that is after the date of such ~~election~~notice. Notwithstanding the foregoing, ~~either post~~ no such change in the ~~fixed~~ Default Settlement Method on or irrevocable election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02(a). Concurrently with providing notice to all Holders of a change in the ~~Company’s website~~ Default Settlement Method or ~~disclose~~ an election to irrevocably fix the ~~same in~~ Settlement Method, the Company shall promptly issue a ~~current report~~ Current Report on Form 8-K (or ~~any successor form) that is filed with the Commission (and make~~ press release announcing such ~~determination of such Specified Dollar Amount on or prior~~ change to the ~~dates set forth above in respect~~ Default Settlement Method or election to irrevocably fix the Settlement Method, as the case may be. For the avoidance of ~~a Combination Settlement as if~~ doubt, such an irrevocable ~~election had not otherwise occurred~~election, if made, will be effective without the need to amend this Indenture or if the Notes, including pursuant Article 10. However, the Company ~~does not make~~ may nonetheless choose to execute such ~~determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)~~an amendment at its option. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (Aa) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (Bb) 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 40 consecutive VWAP Trading Days during the related Observation Period; and (Cc) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). If more than one Note shall be surrendered for conversion ~~pursuant~~ at any one time by the same Holder, the Conversion Obligation with respect to ~~Section 14.02(j))~~such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last ~~day~~ VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (ia) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ Applicable Procedures; (b) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (c) if required, pay funds equal to any interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h)~~ 14.02(g); and~~, if required, pay all transfer or similar taxes, if any, and~~ (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1a) complete, ~~manually~~ sign (by manual, electronic or facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or delivery by electronic ~~communication in PDF format~~mail of a pdf thereof) (a “Notice of Conversion”) ~~at the Corporate Trust Office or the office of~~ and such Note to the Conversion ~~Agent~~ 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) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3b) if required, furnish appropriate endorsements and transfer documents, ; (4c) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (d) if required, pay funds equal to any interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h) and (5) if required, pay all transfer or similar taxes, if any~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such ▇▇▇▇▇▇~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be ~~surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect~~ deemed to ~~such~~ have delivered a notice of its election not to have its Notes ~~shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby)~~ so ~~surrendered~~redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b) above~~Section 14.02(b). ~~Except as set forth in~~ Notes may be surrendered for conversion only after open of business and before the close of business on a Business Day. Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~ Settlement; or (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation ~~on such Global Note~~ in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Notes are surrendered for conversion subject to Redemption by the Company ~~has specified~~ on a Redemption Date that is after a Regular Record Date and on or prior to the ~~second Scheduled Trading~~ Business Day immediately following the corresponding Interest Payment Date; ; (3iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. ~~Therefore, for~~ For the avoidance of doubt, all Holders on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date and any Fundamental Change Repurchase Date described in clauses (i), (ii), (iii) and (iv) of this Section 14.02(g) shall receive and retain the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (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 (i) the ~~Regular Rec~~relevant Conversion Date if the Company elects Physical Settlement or (ii) the last VWAP Trading Day of the relevant

Appears in 1 contract

Sources: Indenture (Cable One, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions of Notes (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (ya) for which the relevant Conversion Date occurs on or after ~~August~~ September 15, ~~2029 and~~ 2025, (zb) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs occurring after ~~the Company’s issuance of~~ a Redemption Notice ~~with respect to the Notes but~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, ~~(x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii)~~ and (ziii) ~~for any conversions~~ following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, shall be settled using the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock). Except for (i) any conversions for which the relevant Conversion Date occurs on or after September 15, 2025, (ii) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and (iii) any conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii) (A~~ii) Subject to the Company’s irrevocable election of a Settlement Method ~~pursuant to~~ as described in this Section ~~14.02(a)(iii)(B~~14.02(a)(ii), ~~if, in respect of any Conversion Date (or one of~~ if the ~~periods described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company,~~ shall deliver ~~such Settlement Notice~~ notice to ~~the Trustee and~~ Holders through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee) and the converting Holders~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ after September 15, 2025, no later than September 15, 2025, or in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after ~~the date of issuance of~~ a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the ~~related~~ relevant Redemption Date, in ~~such Redemption~~ the Notice ~~or (B) on or after August 15, 2029, no later than the close~~ of business on the Business Day immediately preceding August 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein)Redemption. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~the relevant~~ that Conversion Date ~~(or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in~~ converting Holders through the ~~case~~ Conversion Agent of ~~an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes. 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~~. (A)~~ . By notice to ~~the~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ may, prior to the close of business on the Scheduled Trading Day immediately preceding ~~August~~ September 15, ~~2029~~2025, at its option, irrevocably elect to satisfy its Conversion ~~Obligation~~ Obligations with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to ~~the~~ delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on ~~the Company’s~~ its website or disclose the same in a ~~current report~~ Current Report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)Commission. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 50 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 50 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). If more than one Note shall be surrendered for conversion ~~pursuant~~ at any one time by the same Holder, the Conversion Obligation with respect to ~~Section 14.02(j))~~such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last ~~day~~ VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h)~~ 14.02(g); and~~, if required, pay all transfer or similar taxes, if any, and~~ (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, ~~manually~~ sign (by manual, electronic or facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or delivery by electronic ~~communication in PDF format~~mail of a pdf thereof) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion ~~Obligation~~ Obligations to be registered, ~~(2)~~ and surrender such ~~Notes, duly endorsed~~ Note to the ~~Company or in blank (and accompanied by appropriate endorsement and transfer documents),~~ Conversion Agent at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), ; (3B) if required, furnish appropriate endorsements and transfer documents, ; (4C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and (5) if required, pay all transfer or similar taxes, if any~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such ▇▇▇▇▇▇~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be ~~surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect~~ deemed to ~~such~~ have delivered a notice of its election not have its Notes ~~shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby)~~ so ~~surrendered~~redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) if the Company elects Physical Settlement, the second Business Day immediately following the relevant Conversion ~~Date, if the Company elects Physical Settlement (provided that, with respect to~~ Date for any conversion ~~following~~ occurring prior to the Regular Record Date immediately preceding the Maturity ~~Date where Physical Settlement applies~~Date, ~~the Company shall settle any such conversion~~ or on the Maturity Date for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or, (ii) if the ~~Maturity Date is not a Business Day~~Company elects Combination Settlement, ~~the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on~~ the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation ~~on such Global Note~~ in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Notes surrendered for conversion are subject to Redemption by the Company ~~has specified~~ on a Redemption Date that is after a Regular Record Date and on or prior to the ~~second Scheduled Trading~~ Business Day immediately following the corresponding Interest Payment Date; ; (3iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. ~~Therefore, for~~ For the avoidance of doubt, all Holders ~~of record as of the close of business~~ on the Regular ~~Rec~~Record Date immediately preceding the Maturity Date, any Redemption Date as described in clause (ii) above, and any Fundamental Change Repurchase Date shall receive and retain the full interest payment due on the Maturity Date or other appli

Appears in 1 contract

Sources: Indenture (TechTarget Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15~~December 1, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~December 1, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August 15~~December 1, 2029, no later than the close of business on the Business Day immediately preceding ~~August 15~~December 1, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MARA Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions of Notes (xa) for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of~~ December 15, 2025, (b) occurring after a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date ~~(y) for which the relevant Conversion Date occurs on or after August 15, 2029~~ and (ziii) following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, shall be settled using the same Settlement ~~Method.~~ Method (iiincluding the same relative proportion of cash and/or shares of Common Stock). Except for (1) ~~Except (w) for~~ any conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance~~ December 15, 2025, (2) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice ~~with respect to the Notes but~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, ~~(x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii)~~ and (z3) ~~for~~ any ~~conversions~~ conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock in the case of Combination Settlement) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~(A) Subject to~~ Unless the ~~Company’s irrevocable election of a~~ Company has irrevocably fixed the Settlement Method ~~pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or one of the periods~~ as described in ~~the third immediately succeeding set of parentheses, as the case may be~~this Section 14.02(ii), the Company ~~elects~~ shall send or cause to ~~deliver a~~ be sent written notice ~~(the “Settlement Notice”)~~ of the ~~relevant~~ Settlement Method determined in ~~respect of such Conversion Date (or such period~~accordance with this Section 14.02(a) to Holders, ~~as the case may be), the Company, shall deliver such Settlement Notice to~~ the Trustee and the Conversion Agent (if other than the Trustee) ~~and the converting Holders~~ (a) no later than ~~the close of business~~ 1:00 p.m., New York City time, on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date~~ Date, (~~or,~~ b) in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ on or after December 15, 2025, no later than December 15, 2025 or (c) in the ~~date~~ case of ~~issuance~~ any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such ~~Redemption~~ Notice ~~or (B) on or after August 15, 2029, no later than the close~~ of business on the Business Day immediately preceding August 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein)Redemption. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and~~ the Company shall be deemed to have elected the “Default Settlement Method” (as defined below). If the Company elects Combination Settlement ~~in respect~~ but does not timely notify the Conversion Agent 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~~amount, ~~the relevant Settlement Notice shall indicate the~~ such 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~~. (A) By~~ . The “Default Settlement Method” will initially be Combination Settlement with a Specified Dollar Amount of $1,000. However, the Company may, from time to time, change the Default Settlement Method by sending written notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company ~~may prior~~ may, by sending notice to the ~~close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option~~Holders, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect that will apply to ~~satisfy its Conversion Obligation with respect to the Notes through Combination Settlement~~ all conversions with a ~~Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all~~ Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, Date that is after the date of such ~~election~~notice. Notwithstanding the foregoing, ~~either post~~ no such change in the ~~fixed~~ Default Settlement Method on or irrevocable election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02(a). Concurrently with providing notice to all Holders of a change in the ~~Company’s website~~ Default Settlement Method or ~~disclose~~ an election to irrevocably fix the ~~same in~~ Settlement Method, the Company shall promptly issue a ~~current report~~ Current Report on Form 8-K (or ~~any successor form) that is filed with the Commission (and make~~ press release announcing such ~~determination of such Specified Dollar Amount on or prior~~ change to the ~~dates set forth above in respect~~ Default Settlement Method or election to irrevocably fix the Settlement Method, as the case may be. For the avoidance of ~~a Combination Settlement as if~~ doubt, such an irrevocable ~~election had not otherwise occurred~~election, if made, will be effective without the need to amend this Indenture or if the Notes, including pursuant Article 10. However, the Company ~~does not make~~ may nonetheless choose to execute such ~~determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)~~an amendment at its option. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (Aa) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (Bb) 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 40 consecutive VWAP Trading Days during the related Observation Period; and (Cc) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j~~conversion)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (Cable One, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ June 15, ~~2029~~ 2025 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ June 15, ~~2029~~2025, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee (acting upon the written direction of the Company), shall deliver such Settlement Notice to the ~~Trustee and the~~ Conversion Agent ~~(if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August~~ June 15, ~~2029~~2025, no later than the close of business on the Business Day immediately preceding ~~August~~ June 15, ~~2029~~ 2025 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02; provided that unless and until the Reserved Share Effective Date occurs, the Company will be deemed to have elected Cash Settlement in respect of each conversion of Notes. (i) All conversions ~~(x)~~ of Called 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 close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date (y)~~ Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~August 15~~September 1, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B)~~2033, ~~in each case~~ shall be settled using the same Settlement Method. (ii) Except ~~(w)~~ for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~Period, ~~(x) for~~ and any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~September 1, ~~2029~~2033, ~~(y)~~ and except to the extent the Company ~~elects~~ has irrevocably elected Physical Settlement ~~to apply~~ pursuant to Section ~~14.01(b)(ii~~14.01(b) ~~and (z) for any conversions following the Company’s~~ in a notice as described in such Section or previously made an irrevocable election ~~of a Settlement Method pursuant~~ with respect to all subsequent conversions in accordance with Section ~~14.02(a)(iii)(B~~14.02(a)(iii), ~~in each case~~ the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one~~ any conversions of Called Notes for which the ~~periods~~ relevant Conversion Date occurs during the related Redemption Period, or for which the relevant Conversion Date occurs on or after September 1, 2033 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)‎ in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company,~~ Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) ~~and the converting Holders~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (A) of ~~any~~ Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in such Notice of Redemption (xand, in the case of a redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes that are not Called Notes), (B) for which the relevant Conversion Date occurs ~~(A)~~ on or after ~~the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~September 1, ~~in such Redemption Notice or (B) on or after August 15, 2029~~2033, no later than ~~the close of business on the Business Day immediately preceding August 15~~September 1, ~~2029~~ 2033 or (yC) ~~for which~~ to the extent the Company has irrevocably elected Physical Settlement pursuant to ~~Section 14.01(b)(ii~~‎‎Section 14.01(b) in a notice as described in such Section) (in each case, the “Settlement Method Election Deadline”); provided that unless the Reserved Share Effective Date has occurred on or prior to the Settlement Method Election Deadline applicable to a conversion, the Company shall not be permitted to elect a Settlement Method and instead Cash Settlement shall apply, in ~~the related notice described therein)~~each case, in respect of such conversion. If the Company does not elect a Settlement Method prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to ~~the relevant~~ any conversion on such Conversion Date (or during such period, ~~as the case may be)~~ and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~. (A)~~ . For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount will not constitute a Default under this Indenture. By notice to ~~the~~ Holders~~, the Trustee and the Conversion Agent (if other than the Trustee)~~, the Company may from time to time on or after the Reserved Share Effective Date, prior to September 1, 2033, at its option, change the ~~close of business~~ Default Settlement Method. In addition, by notice to Holders, the Company may, on or after the ~~Scheduled Trading Day immediately preceding August 15~~Reserved Share Effective Date and prior to September 1, ~~2029~~2033, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of ~~at least~~ $1,000 ~~for all Conversion Dates occurring subsequent~~ or with an ability to continue to set the ~~delivery~~ Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such ~~notice and for which another~~ election notice. If after the Reserved Share Effective Date the Company changes the Default Settlement Method ~~does not otherwise apply. If the Company~~ or irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company ~~shall~~will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to ‎‎Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at its option. If after the Reserved Share Effective Date the Company changes the Default Settlement Method or it irrevocably fixes the Settlement Method pursuant to the provisions set forth in this paragraph, then, concurrently with providing notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such change or election, the Company shall either post the Default Settlement Method or fixed Settlement ~~Method~~ Method, as the case may be, on ~~the Company’s~~ its website or disclose the same in a ~~current report~~ Current Report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)Commission. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 25 consecutive Trading Days during the related Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) The Settlement Amount will also include cash in respect of accrued and unpaid interest to the extent provided in Section 14.02(h). (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic ~~communication in PDF format~~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 ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee)~~ and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee),~~ and (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ▇H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in ~~Section~~ ‎Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any ~~conversion~~ Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement ~~applies~~applies to the related conversion, the Company shall settle any such conversion on the Maturity ~~Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date~~Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting 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 ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent 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,~~ Unless a Holder ~~shall not~~ converts Notes after the close of business on a Regular Record Date but on or prior to the corresponding Interest Payment Date, it will receive ~~any separate~~ a cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, representing accrued and unpaid interest ~~will be deemed to be paid first out of~~ on such Notes to, but excluding, the ~~cash paid upon such conversion~~applicable Conversion Date. ~~Notwithstanding the foregoing, if~~ If Notes are converted after the close of business on a Regular Record Date ~~but prior to the open of business on the immediately following~~ for an Interest Payment Date, Holders ~~of such Notes as of~~ at the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment ~~Date notwithstanding~~ Date. (i) The Person in whose name the ~~conversion. Notes surrendered for conversion during the period from the close~~ shares of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment Common Stock shall be ~~required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified~~ issuable upon conversion shall be treated as a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders stockholder of record as of the close of business on the ~~Regular Rec~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation

Appears in 1 contract

Sources: Indenture (Plug Power Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ December 15, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ December 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii) (~~A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company,~~ Company shall deliver such Settlement Notice to the converting Holders, the Trustee and ~~the~~ Conversion Agent ~~(if other than the Trustee) and the converting Holders~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (B) on or after ~~August~~ December 15, 2029, no later than the close of business on the Business Day immediately preceding ~~August~~ December 15, ~~2029~~ 2029, or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (AB) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding ~~August~~ December 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase ~~Notice~~ Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid ~~interest~~Special Interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid ~~interest~~ Special Interest, if any, will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of ~~interest~~ Special Interest payable on such ~~Notes~~ Notes, if any, on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest~~ any Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a ~~Regular~~ 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 (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular RecPayment

Appears in 1 contract

Sources: Indenture (Cleanspark, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~Table of Contents delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15~~January 1, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B)~~2026, ~~in each case~~ shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~January 1, ~~2029~~2026, ~~(y)~~ and except to the extent the Company ~~elects~~ has irrevocably elected Physical Settlement ~~to apply~~ pursuant to Section 14.01(b)(ii~~) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B~~), in ~~each case~~ a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) ~~Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one of~~ any conversions for which the ~~periods~~ relevant Conversion Date occurs on or after January 1, 2026 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in a notice described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through and upon a written request to the Trustee, shall deliver such Settlement Notice to ~~the Trustee and the Conversion Agent (if other than the Trustee) and the~~ converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~of any Notes~~ (x1) for which the relevant Conversion Date occurs ~~(A)~~ on or after ~~the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~January 1, ~~in such Redemption Notice or (B) on or after August 15, 2029~~2026, no later than ~~the close of business on the Business Day immediately preceding August 15~~January 1, ~~2029~~ 2026 or (y2) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section ~~14.01(b)(ii~~14.01(b) (ii), in ~~the related~~ a notice described ~~therein~~in such Section). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to ~~the relevant~~ any conversion on such Conversion Date (or during such period, ~~as the case may be)~~ and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for For the avoidance of doubt, ~~all Holders~~ the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of ~~record as of the close of business on the Regular Rec~~Default under this Indenture.

Appears in 1 contract

Sources: Indenture (Ionis Pharmaceuticals Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. Prior to July 1, 2021, the Company may irrevocably elect, in its sole discretion without the consent of the Holders, Combination Settlement with a Specified Dollar Amount of at least $1,000 (an “Irrevocable Election”) for all conversions subsequent to the date of such election. If the Company makes such an election in its sole discretion, it shall notify each Holder, the Trustee, the Paying Agent (if other than the Trustee) and the Conversion Agent (if other than the Trustee) in writing. From and after any such Irrevocable Election, the Company will continue to be able to select any Specified Dollar Amount subject to the conditions and limitations set forth in this Indenture so long as such Specified Dollar Amount is at least $1,000. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs occurring on or after ~~August 15~~July 1, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case~~ 2021 shall be settled using the same Settlement Method. (ii) Except ~~(w)~~ for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs occurring on or after ~~August 15~~July 1, ~~2029~~2021, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, ~~but~~ but, unless the Company shall have made an Irrevocable Election, the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one of the periods described in the third immediately succeeding set of parentheses~~on or after July 1, ~~as the case may be~~2021), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to ~~the Trustee and the Conversion Agent (if other than the Trustee) and the~~ converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~of any Notes (x) for which the relevant Conversion Date occurs (A)~~ occurring on or after ~~the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~July 1, ~~in such Redemption Notice or (B) on or after August 15, 2029~~2021, no later than ~~the close of business on the Business Day immediately preceding August 15~~July 1, ~~2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 30 consecutive Trading Days during the related Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall provide an irrevocable notice (a “Notice of Conversion”) (i) in the case of a Global Note, ~~comply~~ by complying with the procedures of the Depositary in effect at that time and, if required, ~~pay~~ paying all documentary, stamp or similar issue or transfer taxes as set forth in Section 14.02(d) and, if required, paying funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and, if required, pay all transfer or similar taxes, if any,~~ and (ii) in the case of a Physical Note (1) ~~complete~~completing, manually ~~sign~~ signing and ~~deliver~~ delivering an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile ~~or electronic communication in PDF format) (a “Notice of Conversion”~~thereof) at ~~the Corporate Trust Office or~~ the office of the Conversion Agent ~~(if other than the Trustee)~~ and ~~state~~ stating in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) ~~surrender~~ surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, ~~furnish~~ furnishing appropriate endorsements and transfer documents, (4) if required, ~~pay~~ paying all documentary, stamp or similar issue or transfer taxes as set forth in Section 14.02(d) and (e) and (5) if required, paying funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and (5) if required, pay all transfer or similar taxes, if any~~). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Fundamental Change ~~Repurchase~~ Purchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change ~~Repurchase~~ Purchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, ~~stamp~~ stamp, or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Stock,~~ Stock accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date but prior to the open of business on the immediately following Interest Payment~~ Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period ~~from~~ beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for ~~conversions following~~ Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Purchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~Regular Rec~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Isis Pharmaceuticals Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after August 15, ~~2029~~ 2026 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after August 15, ~~2029~~2026, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee (acting upon the written direction of the Company), shall deliver such Settlement Notice to the ~~Trustee and the~~ Conversion Agent ~~(if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after August 15, ~~2029~~2026, no later than the close of business on the Business Day immediately preceding August 15, ~~2029~~ 2026 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after August 15, ~~2029~~ 2031 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to ~~Section~~ ‎Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after August 15, ~~2029~~2031, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to ~~Section~~ ‎Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to ~~Section~~ ‎Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company,~~ Company shall deliver such Settlement Notice to the converting Holders, the Trustee and ~~the~~ Conversion Agent ~~(if other than the Trustee) and the converting Holders~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (B) on or after August 15, ~~2029~~2031, no later than the close of business on the Business Day immediately preceding August 15, ~~2029~~ 2031, or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (Cleanspark, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15~~May 1, ~~2029~~ 2032 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~May 1, ~~2029~~2032, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August 15~~May 1, ~~2029~~2032, no later than the close of business on the Business Day immediately preceding ~~August 15~~May 1, ~~2029~~ 2032 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MARA Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption ~~Date~~ Date, (y) for which the relevant Conversion Date occurs on or after ~~August 15, 2029~~ [●]25 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~Period, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15, 2029~~[●]26, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. 25 Note to Draft: Six months prior to Maturity Date. 26 Note to Draft: Six months prior to Maturity Date. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or ~~one~~ any conversions of Called Notes for which the ~~periods~~ relevant Conversion Date occurs during the related Redemption Period, or for which the relevant Conversion Date occurs on or after [●]27 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the ~~Trustee and~~ Trustee, the Conversion Agent ~~(if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) ~~on or after~~ during the ~~date of issuance of a~~ Redemption ~~Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice~~ Period or (B) on or after ~~August 15, 2029~~[●]28, no later than the close of business on the Business Day immediately preceding ~~August 15, 2029~~ [●]29 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Subscription Agreement (M3-Brigade Acquisition v Corp.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) ~~All~~ Subject to Section 14.02(a)(iii)(B), all conversions ~~(x)~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the ~~close of business on the second Scheduled Trading Day immediately preceding the~~ related Redemption Date ~~(y)~~ shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~August 15~~October 1, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case~~ 2026 shall be settled using the same Settlement Method. (ii) ~~Except (w)~~ Subject to Section 14.02(a)(iii)(B), except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the ~~close of business on the second Scheduled Trading Day immediately preceding the~~ related Redemption Date, ~~(x) for~~ and any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~October 1, ~~2029~~2026, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to ~~the Company’s irrevocable election of a Settlement Method pursuant to~~ Section 14.02(a)(iii)(B), 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 deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to ~~the Trustee and the Conversion Agent (if other than the Trustee) and the~~ converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs (Ax) ~~on or~~ after the date of issuance of a Redemption Notice with respect to the Notes and prior to the ~~close of business on the second Scheduled Trading Day immediately preceding the~~ related Redemption Date, in such Redemption Notice or (By) on or after ~~August 15~~October 1, ~~2029~~2026, no later than ~~the close of business on the Business Day immediately preceding August 15~~October 1, ~~2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence~~sentence and the Company has not previously made an irrevocable Settlement Method election pursuant to Section 14.02(a)(iii)(B), the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (Veeco Instruments Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~(x) for which the relevant Conversion Date occurs after the Company’s issuance~~ of Notes in connection with a ~~Redemption~~ Notice ~~with respect to the Notes~~ of Redemption, and ~~prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y)~~ all conversions for which the relevant Conversion Date occurs on or after ~~August~~ July 15, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B)~~2030, ~~in each case~~ shall be settled using the same Settlement Method. (ii) Except ~~(w)~~ for any conversions ~~for which the relevant Conversion Date occurs after the Company’s issuance~~ of Notes in connection with a ~~Redemption~~ Notice ~~with respect to the Notes but prior to the close~~ of ~~business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~Redemption, ~~(x) for~~ and any conversions for which the relevant Conversion Date occurs on or after ~~August~~ July 15, ~~2029~~2030, ~~(y)~~ and except to the extent the Company ~~elects~~ has irrevocably elected Physical Settlement ~~to apply~~ pursuant to Section 14.01(b)(ii) ~~and (z) for any~~ in a notice as described in such Section or previously made an Irrevocable Settlement Election with respect to all subsequent conversions ~~following the Company’s irrevocable election~~ of ~~a Settlement Method pursuant to~~ Notes in accordance with Section ~~14.02(a)(iii)(B~~14.02(a)(iii), ~~in each case~~ the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one~~ any conversions of Notes in connection with a Notice of Redemption, any conversions for which the ~~periods~~ relevant Conversion Date occurs on or after July 15, 2030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company,~~ Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) ~~and the converting Holders~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Notes in connection with a Notice of Redemption, in the related Notice of Redemption, (B) any conversions of Notes ~~(x)~~ for which the relevant Conversion Date occurs ~~(A)~~ on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after August July 15, ~~2029~~2030, no later than ~~the close of business on the Business Day immediately preceding August~~ July 15, ~~2029~~ 2030 or (yC) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in ~~the related~~ a notice as described ~~therein~~in such Section). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to ~~the relevant~~ any conversion on such Conversion Date (or during such period, ~~as the case may be)~~ and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~. (A)~~ . For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~the~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ may, from time to time, change the Default Settlement Method prior to ~~the close of business on the Scheduled Trading Day immediately preceding August~~ July 15, ~~2029~~2030. By notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to July 15, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of ~~at least~~ $1,000 ~~for all Conversion Dates occurring subsequent~~ or with an ability to continue to set the ~~delivery~~ Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice ~~and for which another~~ (any such election, an “Irrevocable Settlement ~~Method does not otherwise apply~~Election”). If the Company ~~irrevocably elects~~ changes the Default Settlement Method or the Company makes an Irrevocable Settlement Election, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company ~~shall~~will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the notice changing the Default Settlement Method or making an Irrevocable Settlement Election, as the case may be, or, if no specific amount was set forth in the relevant notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an Irrevocable Settlement Election shall apply to all conversions of Notes with Conversion Dates occurring subsequent to the delivery of such notice (or, in the case of a change in the Default Settlement Method that is not an Irrevocable Settlement Election, unless and until a new notice to change the Default Settlement Method or make an Irrevocable Settlement Election has been delivered pursuant to this Section 14.02(a)(iii)); provided, however, that no such change or election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an Irrevocable Settlement Election, if made by the Company, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company makes an Irrevocable Settlement Election pursuant to this paragraph, then, concurrently with providing notice to Holders of such change or election, the Company shall either post the Default Settlement Method or fixed Settlement ~~Method~~ Method, as the case may be, on ~~the Company’s~~ its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)Commission. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 30 consecutive Trading Days during the related Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that ~~time and~~time, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic ~~communication in PDF format~~transmission thereof) (a “Notice of Conversion”) at the ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee)~~ and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any ~~conversion following the Regular Record~~ Conversion Date ~~immediately preceding the Maturity Date where Physical Settlement applies~~occurring on or after October 1, ~~the Company shall settle any~~ 2030, we will deliver such ~~conversion~~ consideration on the Maturity ~~Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date~~Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting 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 ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment or shares of Common Stock for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date ~~but~~ and prior to the open of business on the ~~immediately following~~ corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Recthe

Appears in 1 contract

Sources: Indenture (Planet Labs PBC)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ September 15, ~~2029~~ 2030 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ September 15, ~~2029~~2030, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Conversion Agent (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Trustee ~~and the Conversion Agent (if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August~~ September 15, ~~2029~~2030, no later than the close of business on the Business Day immediately preceding ~~August~~ September 15, ~~2029~~ 2030 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~(x) for which the relevant Conversion Date occurs after the Company’s issuance~~ of Notes in connection with a ~~Redemption~~ Notice ~~with respect to the Notes~~ of Redemption, and ~~prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y)~~ all conversions for which the relevant Conversion Date occurs on or after ~~August~~ October 15, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B)~~2035, ~~in each case~~ shall be settled using the same Settlement Method. (ii) Except ~~(w)~~ for any conversions ~~for which the relevant Conversion Date occurs after the Company’s issuance~~ of Notes in connection with a ~~Redemption~~ Notice ~~with respect to the Notes but prior to the close~~ of ~~business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~Redemption, ~~(x) for~~ and any conversions for which the relevant Conversion Date occurs on or after ~~August~~ October 15, ~~2029~~2035, ~~(y)~~ and except to the extent the Company ~~elects~~ has irrevocably elected Physical Settlement ~~to apply~~ pursuant to Section 14.01(b)(ii) ~~and (z) for any~~ in a notice as described in such Section or previously made an Irrevocable Settlement Election with respect to all subsequent conversions ~~following the Company’s irrevocable election~~ of ~~a Settlement Method pursuant to~~ Notes in accordance with Section ~~14.02(a)(iii)(B~~14.02(a)(iii), ~~in each case~~ the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one~~ any conversions of Notes in connection with a Notice of Redemption, any conversions for which the ~~periods~~ relevant Conversion Date occurs on or after October 15, 2035 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company,~~ Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) ~~and the converting Holders~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Notes in connection with a Notice of Redemption, in the related Notice of Redemption, (B) any conversions of Notes ~~(x)~~ for which the relevant Conversion Date occurs ~~(A)~~ on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after August October 15, ~~2029~~2035, no later than ~~the close of business on the Business Day immediately preceding August~~ October 15, ~~2029~~ 2035 or (yC) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to ~~Section~~ ‎‎Section 14.01(b)(ii), in ~~the related~~ a notice as described ~~therein~~in such Section). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to ~~the relevant~~ any conversion on such Conversion Date (or during such period, ~~as the case may be)~~ and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~. (A)~~ . For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~the~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ may, from time to time, change the Default Settlement Method prior to ~~the close of business on the Scheduled Trading Day immediately preceding August~~ October 15, ~~2029~~2035. By notice to all Holders, the Company may, prior to October 15, 2035, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of ~~at least~~ $1,000 ~~for all Conversion Dates occurring subsequent~~ or with an ability to continue to set the ~~delivery~~ Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice ~~and for which another~~ (any such election, an “Irrevocable Settlement ~~Method does not otherwise apply~~Election”). If the Company ~~irrevocably elects~~ changes the Default Settlement Method or the Company makes an Irrevocable Settlement Election, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company ~~shall~~will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the notice changing the Default Settlement Method or making an Irrevocable Settlement Election, as the case may be, or, if no specific amount was set forth in the relevant notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an Irrevocable Settlement Election shall apply to all conversions of Notes with Conversion Dates occurring subsequent to the delivery of such notice (or, in the case of a change in the Default Settlement Method that is not an Irrevocable Settlement Election, unless and until a new notice to change the Default Settlement Method or make an Irrevocable Settlement Election has been delivered pursuant to this Section 14.02(a)(iii)); provided, however, that no such change or election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an Irrevocable Settlement Election, if made by the Company, shall be effective without the need to amend this Indenture or the Notes, including pursuant to ‎‎Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company makes an Irrevocable Settlement Election pursuant to this paragraph, then, concurrently with providing notice to Holders of such change or election, the Company shall either post the Default Settlement Method or fixed Settlement ~~Method~~ Method, as the case may be, on ~~the Company’s~~ its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)Commission. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 20 consecutive Trading Days during the related Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and, if required, pay all transfer or similar taxes, if any,~~ and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic ~~communication in PDF format~~transmission thereof) (a “Notice of Conversion”) at the ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee)~~ and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents,~~ documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and (5) if required, pay all transfer or similar taxes, if any~~). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ▇H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. 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 (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting 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 ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment or shares of Common Stock for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date ~~but~~ and prior to the open of business on the ~~immediately following~~ corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of ~~business on the Regular Rec~~busi

Appears in 1 contract

Sources: Indenture (AST SpaceMobile, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. Prior to August 1, 2024, the Company may irrevocably elect, in its sole discretion without the consent of the Holders, Combination Settlement with a Specified Dollar Amount of at least $1,000 (an “Irrevocable Election”) for all conversions subsequent to the date of such election. If the Company makes such an election in its sole discretion, it shall notify each Holder, the Trustee, the Paying Agent (if other than the Trustee) and the Conversion Agent (if other than the Trustee) in writing. From and after any such Irrevocable Election, the Company will continue to be able to select any Specified Dollar Amount subject to the conditions and limitations set forth in this Indenture so long as such Specified Dollar Amount is at least $1,000. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs occurring on or after August 151, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case~~ 2024 shall be settled using the same Settlement Method. (ii) Except ~~(w)~~ for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs occurring on or after August 151, ~~2029~~2024, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, ~~but~~ but, unless the Company shall have made an Irrevocable Election, the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one of the periods described in the third immediately succeeding set of parentheses~~on or after August 1, ~~as the case may be~~2024), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to ~~the Trustee and the Conversion Agent (if other than the Trustee) and the~~ converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) occurring on or after August 151, ~~2029~~2024, no later than ~~the close of business on the Business Day immediately preceding~~ August 151, ~~2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 30 consecutive Trading Days during the related Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall provide an irrevocable notice (a “Notice of Conversion”) (i) in the case of a Global Note, ~~comply~~ by complying with the procedures of the Depositary in effect at that time and, if required, ~~pay~~ paying all documentary, stamp or similar issue or transfer taxes as set forth in Section 14.02(d) and, if required, paying funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and, if required, pay all transfer or similar taxes, if any,~~ and (ii) in the case of a Physical Note (1) ~~complete~~completing, manually ~~sign~~ signing and ~~deliver~~ delivering an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile ~~or electronic communication in PDF format) (a “Notice of Conversion”~~thereof) at ~~the Corporate Trust Office or~~ the office of the Conversion Agent ~~(if other than the Trustee)~~ and ~~state~~ stating in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) ~~surrender~~ surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, ~~furnish~~ furnishing appropriate endorsements and transfer documents, (4) if required, ~~pay~~ paying all documentary, stamp or similar issue or transfer taxes as set forth in Section 14.02(d) and (e) and (5) if required, paying funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and (5) if required, pay all transfer or similar taxes, if any~~). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Fundamental Change ~~Repurchase~~ Purchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change ~~Repurchase~~ Purchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (~~provided that, with respect to any conversion following~~ unless such Conversion Date is on or after the Regular Record Date immediately preceding the Maturity ~~Date where Physical Settlement applies~~Date, in which case the Company shall ~~settle any~~ deliver the consideration due in respect of such ~~conversion~~ Conversion Obligation on the Maturity ~~Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date~~Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, ~~stamp~~ stamp, or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Stock,~~ Stock accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date but prior to the open of business on the immediately following Interest Payment~~ Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period ~~from~~ beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for ~~conversions following~~ Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Purchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~Regular Rec~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Ionis Pharmaceuticals Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ December 15, ~~2029~~ 2031 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ December 15, ~~2029~~2031, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Conversion Agent (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Trustee ~~and the Conversion Agent (if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August~~ December 15, ~~2029~~2031, no later than the close of business on the Business Day immediately preceding ~~August~~ December 15, ~~2029~~ 2031 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. Prior to August 15, 2018, the Company may irrevocably elect, in its sole discretion without the consent of the Holders, Combination Settlement with a Specified Dollar Amount to be determined by the Company (an “Irrevocable Election”) for all conversions subsequent to the date of such election; provided, however, that unless and until the Company has obtained stockholder approval to issues shares of the Common Stock in excess of the Aggregate Share Cap upon conversion of the Notes in accordance with the listing standards of The NASDAQ Global Market the Company shall be required to elect Combination Settlement with a Specified Dollar Amount of at least $1,000 for all Notes submitted for conversion. If the Company makes such an election, it shall notify each Holder, the Trustee and the Paying Agent and the Conversion Agent (if other than the Trustee) in writing. (i) All conversions ~~(x)~~ for which the relevant Conversion Date occurs ~~after~~ during the ~~Company’s issuance of a Redemption Notice with respect to the Notes~~ period from, and ~~prior~~ including, August 15, 2018 to the close of business on the second Scheduled Trading Day immediately preceding the ~~related Redemption~~ Maturity Date (y) for which the relevant Conversion Date occurs on or after August 15, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except ~~(w)~~ for any conversions for which the relevant Conversion Date occurs ~~after~~ during the ~~Company’s issuance of a Redemption Notice with respect to the Notes but prior~~ period from, and including, August 15, 2018 to the close of business on the second Scheduled Trading Day immediately preceding the ~~related Redemption~~ Maturity Date, (x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, ~~but~~ but, unless the Company shall have made an Irrevocable Election, the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one of~~ the ~~periods~~ period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to ~~the Trustee and the Conversion Agent (if other than the Trustee) and the~~ converting Holders no later than the close of business on the second Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes~~ occurring from, and ~~prior~~ including, August 15, 2018 to the close of business on the second Scheduled Trading Day immediately preceding the ~~related Redemption~~ Maturity Date~~, in such Redemption Notice or (B) on or after August 15, 2029~~, no later than the close of business on the Business Day immediately preceding August 15, ~~2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein~~2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or~~ during such ~~period, as the case may be)~~ period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (Aiv) ~~By notice~~ Notwithstanding anything else in this Section 14.02 to the ~~Holders~~contrary, unless and until the ~~Trustee and~~ Company obtains stockholder approval to issue more than 13,164,951 shares of the ~~Conversion Agent~~ Common Stock, which is 19.99% of the Common Stock outstanding on November 18, 2013 (~~if other than~~ the ~~Trustee~~“Aggregate Share Cap”), upon conversion of the Notes in accordance with the listing standards of The NASDAQ Global Market, (x) the Company ~~may prior~~ shall be required to ~~the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably~~ elect ~~to satisfy its Conversion Obligation with respect to the Notes through~~ Combination Settlement with a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ of at least $1,000 for all ~~Conversion Dates occurring subsequent to~~ Notes submitted for conversion, and (y) if the ~~delivery~~ number of ~~such notice and~~ shares of Common Stock deliverable for ~~which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set~~ conversion value in excess of the Specified Dollar Amount ~~per $1,000 principal amount~~ is greater than the Conversion Share Cap, then the number of ~~Notes at or above a specific amount,~~ shares to be delivered by the Company ~~shall, after~~ shall be capped at the ~~date~~ Conversion Share Cap and the Company shall pay cash in lieu of such ~~election, either post the fixed Settlement Method~~ shares of Common Stock that would otherwise be deliverable. Such cash amount in clause (y) shall be determined based on the ~~Company’s website~~ Daily VWAP for each Trading Day during the relevant Observation Period. The Aggregate Share Cap will not be adjusted for any increase in the applicable Conversion Rate (except in the case of a share split or ~~disclose~~ share combination of the ~~same~~ Common Stock as described in ~~a current report on Form 8-K (or any successor form) that is filed~~ Section 14.04(a)). The Conversion Share Cap and the Aggregate Share Cap will apply until the Company has obtained stockholder approval to issues shares of the Common Stock in excess of the Aggregate Share Cap upon conversion of the Notes in accordance with the ~~Commission (and make such determination~~ listing standards of ~~such Specified Dollar Amount on or prior~~ The NASDAQ Global Market. The Company agrees to use its reasonable best efforts to include for vote by the ~~dates set forth above in respect~~ stockholders of ~~a Combination Settlement as if an irrevocable election had not otherwise occurred, or if~~ the Company ~~does not make such determination by such date~~ during the ~~Specified Dollar Amount shall be $1,000 per $1,000 principal amount~~ next annual stockholder meeting of ~~Notes)~~the Company the approval, in accordance with the listing standards of The NASDAQ Global Market, of the issuance of shares of Common Stock upon conversion of the Notes in excess of the Aggregate Share Cap. (ivv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~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 40 50 consecutive Trading Days during the ~~related~~ relevant Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 50 consecutive Trading Days during the ~~related~~ relevant Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant~~ Period, subject to ~~Section 14.02(j))~~the Conversion Share Cap. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and, if required, pay all transfer or similar taxes, if any,~~ and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile ~~or electronic communication in PDF format~~thereof) (a “Notice of Conversion”) at the ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee)~~ and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay all transfer and similar taxes as set forth in Sections 14.02(d) and (e) and (5) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and (5) if required, pay all transfer or similar taxes, if any~~). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~Except as set forth in Section 14.03(b) and Section 14.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any ~~conversion following the Regular Record~~ Conversion Date ~~immediately preceding the Maturity Date where Physical Settlement applies~~occurring on or after August 15, 2018, the Company shall settle any such conversion on the Maturity ~~Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date~~Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date but prior to the open of business on the immediately following Interest Payment~~ Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~Regular Rec~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for

Appears in 1 contract

Sources: Indenture (Horizon Pharma, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions of Notes (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (ya) for which the relevant Conversion Date occurs on or after ~~August~~ September 15, ~~2029 and~~ 2026, (zb) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs occurring after ~~the Company’s issuance of~~ a Redemption Notice ~~with respect to the Notes but~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, ~~(x) for any conversions for which the relevant Conversion Date occurs on or after August 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii)~~ and (ziii) ~~for any conversions~~ following the Company’s irrevocable election of a Settlement Method pursuant to Section ~~14.02(a)(iii)(B~~14.02(a)(ii), in each ~~case~~ case, shall be settled using the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock). Except for (i) any conversions for which the relevant Conversion Date occurs on or after September 15, 2026, (ii) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and (iii) any conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii) (A~~ii) Subject to the Company’s irrevocable election of a Settlement Method ~~pursuant to~~ as described in this Section ~~14.02(a)(iii)(B~~14.02(a)(ii), ~~if, in respect of any Conversion Date (or one of~~ if the ~~periods described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company,~~ shall deliver ~~such Settlement Notice~~ notice to ~~the Trustee and~~ Holders through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee) and the converting Holders~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ after September 15, 2026, no later than September 15, 2026, or in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after ~~the date of issuance of~~ a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the ~~related~~ relevant Redemption Date, in ~~such Redemption~~ the Notice ~~or (B) on or after August 15, 2029, no later than the close~~ of business on the Business Day immediately preceding August 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein)Redemption. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~the relevant~~ that Conversion Date ~~(or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in~~ converting Holders through the ~~case~~ Conversion Agent of ~~an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes. 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~~. (A)~~ . By notice to ~~the~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ may, prior to the close of business on the Scheduled Trading Day immediately preceding ~~August~~ September 15, ~~2029~~2026, at its option, irrevocably elect to satisfy its Conversion ~~Obligation~~ Obligations with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to ~~the~~ delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on ~~the Company’s~~ its website or disclose the same in a ~~current report~~ Current Report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes)Commission. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 50 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 50 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). If more than one Note shall be surrendered for conversion ~~pursuant~~ at any one time by the same Holder, the Conversion Obligation with respect to ~~Section 14.02(j))~~such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last ~~day~~ VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ Applicable Procedures; (B) if required, pay funds equal to ~~interest~~ all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h)~~ 14.02(g); and~~, if required, pay all transfer or similar taxes, if any, and~~ (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, ~~manually~~ sign (by manual, electronic or facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or delivery by electronic ~~communication in PDF format~~mail of a pdf thereof) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion ~~Obligation~~ Obligations to be registered, ~~(2)~~ and surrender such ~~Notes, duly endorsed~~ Note to the ~~Company or in blank (and accompanied by appropriate endorsement and transfer documents),~~ Conversion Agent at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), ; (3B) if required, furnish appropriate endorsements and transfer documents, ; (4C) if required, pay funds equal to ~~interest~~ all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and (5) if required, pay all transfer or similar taxes, if any~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such ▇▇▇▇▇▇~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be ~~surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect~~ deemed to ~~such~~ have delivered a notice of its election not have its Notes ~~shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby)~~ so ~~surrendered~~redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) if the Company elects Physical Settlement, the second Business Day immediately following the relevant Conversion ~~Date, if the Company elects Physical Settlement (provided that, with respect to~~ Date for any conversion ~~following~~ occurring prior to the Regular Record Date immediately preceding the Maturity ~~Date where Physical Settlement applies~~Date, ~~the Company shall settle any such conversion~~ or on the Maturity Date for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or, (ii) if the ~~Maturity Date is not a Business Day~~Company elects Combination Settlement, ~~the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on~~ the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation ~~on such Global Note~~ in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid ~~interest~~Special Interest, if any, except as set forth in the paragraph below. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid ~~interest will~~ Special Interest, if any, shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date for the payment of Special Interest, if any, but prior to the open of business on the immediately following a Special Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such ~~Regular~~ Special Interest Record Date ~~will~~ shall receive the full amount of ~~interest~~ Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following a Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest~~ Special Interest payable on the Notes so ~~converted~~converted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity Date; ; (2ii) if the Notes surrendered for conversion are subject to Redemption by the Company ~~has specified~~ on a Redemption Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the ~~second Scheduled Trading~~ Business Day immediately following the corresponding Special Interest Payment Date; ; (3iii) 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 or (4iv) to the extent of any ~~Defaulted Amounts~~overdue Special Interest, if any ~~Defaulted Amounts~~ overdue Special Interest exists at the time of conversion with respect to such Note. ~~Therefore, for~~ For the avoidance of doubt, all Holders ~~of record as of the close of business~~ on the ~~Regular Rec~~Special Inter

Appears in 1 contract

Sources: Indenture (TechTarget Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15~~June 1, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15~~June 1, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Conversion Agent (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Trustee ~~and the Conversion Agent (if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August 15~~June 1, 2029, no later than the close of business on the Business Day immediately preceding ~~August 15~~June 1, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August 15, 2029~~ [●]25 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~Period, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August 15, 2029~~[●]26, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or ~~one~~ any conversions of Called Notes for which the ~~periods~~ relevant Conversion Date occurs during the related Redemption Period, or for which the relevant Conversion Date occurs on or after [●]27 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the ~~Trustee and~~ Trustee, the Conversion Agent ~~(if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) ~~on or after~~ during the ~~date of issuance of a~~ Redemption ~~Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice~~ Period or (B) on or after ~~August 15, 2029~~[●]28, no later than the close of business on the Business Day immediately preceding ~~August 15, 2029~~ [●]29 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~. (A) By notice~~ . 25 Note to ~~the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may~~ Draft: Six months prior to ~~the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect~~ Maturity Date. 26 Note to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or Draft: Six months prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects Maturity Date. 27 Note to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately Draft: Three months 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 (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. ~~As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed~~ 28 Note to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but Draft: Six months prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date~~; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or~~ . 29 Note to Draft: Six months prior to ~~the second Scheduled Trading Day immediately following the corresponding Interest Payment~~ Maturity Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec.

Appears in 1 contract

Sources: Indenture (Twenty One Assets, LLC)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs occurring on or after ~~August~~ March 15, ~~2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case~~ 2020 shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ March 15, ~~2029~~2020, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion ~~Dates~~Days. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one of~~ the ~~periods~~ period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to ~~the Trustee and the Conversion Agent (if other than the Trustee) and the~~ converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~of any Notes (x)~~ for which the relevant Conversion Date occurs ~~(A)~~ on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after August March 15, ~~2029~~2020, no later than the close of business on ~~the Business~~ Scheduled Trading Day immediately preceding ~~August~~ March 15, ~~2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein~~2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to the relevant Conversion Date (or such period, as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~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 40 80 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 80 consecutive Trading Days during the related Observation ~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j))~~Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and, if required, pay all transfer or similar taxes, if any,~~ and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile ~~or electronic communication in PDF format~~thereof) (a “Notice of Conversion”) at the ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee)~~ and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents, including signature guarantees), at ~~the Corporate Trust Office or~~ the office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, furnish appropriate endorsements and transfer documents, including signature guarantees and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and (5) if required, pay 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 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~Except as set forth in Section 14.03(b) and Section 14.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date but prior to the open of business on the immediately following Interest Payment~~ Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~Regular Rec~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (TTM Technologies Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ March 15, ~~2029~~ 2028 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ March 15, ~~2029~~2028, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Conversion Agent (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Trustee ~~and the Conversion Agent (if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August~~ March 15, ~~2029~~2028, no later than the close of business on the Business Day immediately preceding ~~August~~ March 15, ~~2029~~ 2028 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this Section 14.02,~~ Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be~~, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted~~, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional ~~share~~ shares of Common Stock in accordance with ~~subsection (j~~Section 14.02(j) ~~of this Section 14.02~~ (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional ~~share~~ shares of Common Stock in accordance with ~~subsection (j~~Section 14.02(j) ~~of this Section 14.02~~ (“Combination Settlement”), at its election, ~~as set forth in this Section 14.02~~to the converting Holder. (i) All conversions of (xa) Called 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 close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~ Period, (yb) ~~for which the relevant Conversion Date occurs~~ on or after ~~August~~ December 15, 2029 and (zc) following the Company’s irrevocable election of a Settlement Method ~~pursuant to~~ as described in Section ~~14.02(a)(iii)(B~~14.02(a)(iv), in each ~~case~~ case, shall be settled using the same Settlement ~~Method~~Method (including the same relative proportion of cash and/or shares of Common Stock). (ii) ~~Except (w)~~ Subject to the Company’s irrevocable election of a Settlement Method as described below, and except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~Period, ~~(x) for~~ and any conversions for which the relevant Conversion Date occurs on or after ~~August~~ December 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) ~~(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if~~If, in respect of any Conversion Date (or ~~one~~ any conversions of Called Notes for which the ~~periods described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December 15, ~~as the case may be~~2029), the Company elects ~~to deliver~~ a ~~notice (the “~~Settlement ~~Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)~~Method, the ~~Company~~Company shall inform converting Holders, ~~shall deliver such Settlement Notice to~~ the Trustee and the Conversion Agent (if other than the Trustee) ~~and~~ of such election (the ~~converting Holders~~ “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of ~~any~~ Called Notes ~~(x)~~ for which the relevant Conversion Date occurs ~~(A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding~~ during the related Redemption ~~Date~~Period, in ~~such~~ the related Notice of Redemption ~~Notice~~ or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~August~~ December 15, 2029, no later than ~~the close of business on the Business Day immediately preceding August~~ December 15, ~~2029 or (y) for which~~ 2029). If the Company ~~has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in~~ calls all or any Notes for redemption and the related ~~notice described therein)~~Redemption Date is on or after December 15, 2029, then the Settlement Method that the Company elects to apply for conversions with a Conversion Date occurring during the related Redemption Period must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 15, 2029. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~the relevant~~ that Conversion ~~Date (or such period~~Date, ~~as the case may be)~~ and the Company shall be deemed to have elected Combination Settlement in respect of its ~~Conversion Obligation~~conversion obligation, and the Specified Dollar Amount ~~per $1,000 principal amount of Notes shall~~ will be equal to $1,000. ~~Such Settlement Notice shall specify~~ If the ~~relevant Settlement Method and in the case of an election of~~ Company elects Combination Settlement, but the ~~relevant Settlement Notice shall indicate~~ Company does not timely notify the Conversion Agent of the Specified Dollar ~~Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ Amount, such Specified Dollar Amount ~~per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (Aiv) By notice to Holders of the ~~Holders~~Notes (an “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~may~~ may, prior to ~~the close of business on the Scheduled Trading Day immediately preceding August~~ December 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement with a Specified Dollar Amount ~~per~~ of $1,000 ~~principal~~ or with an ability to continue to set the Specified Dollar Amount at or above any specified amount ~~of Notes of at least $1,000~~ set forth in such election notice) for all Conversion Dates occurring subsequent to ~~the~~ delivery of such ~~notice and for which another Settlement Method does not otherwise apply~~notice. If the Company elects to irrevocably ~~elects~~ fix the Settlement Method to Combination Settlement with an ability to continue to set the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ at or above a ~~specific~~ specified amount, the Company shall, after the date of such election, ~~either post~~ as the ~~fixed Settlement Method on~~ case may be, inform Holders converting their Notes, the ~~Company’s website or disclose~~ Trustee and the ~~same~~ Conversion Agent (if other than the Trustee) in ~~a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination~~ writing of such Specified Dollar Amount ~~on or prior to the dates set forth above~~ in respect of ~~a Combination Settlement~~ the relevant conversion or conversions no later than the relevant settlement method election deadline for such conversion or conversions as ~~if an irrevocable election had not otherwise occurred~~described in Section 14.02(a)(iii), or or, if the Company does not ~~make~~ timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such ~~determination by such date the~~ Specified Dollar Amount shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be deemed to be $~~1,000 per $1,000 principal amount~~ 1,000. Notwithstanding the foregoing, no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any note pursuant to this Section 14.02(a). For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(n); however, the Company may nonetheless choose to execute such an amendment at its option. (ivv) The cash, shares of Common Stock or combination of cash and shares of Common Stock ~~payable or deliverable by the Company~~ in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 50 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon ~~conversion pursuant to Section 14.02(j)~~conversion). (vvi) The Daily Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and, if required, pay all transfer or similar taxes, if any,~~ and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic ~~communication in PDF format~~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 ~~Corporate Trust Office or the~~ office of the Conversion Agent ~~(if other than the Trustee)~~ and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the ~~Corporate Trust Office or the~~ office of the Conversion ~~Agent (if other than the Trustee)~~Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents,~~ documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and (5) if required, pay all transfer or similar taxes, if any~~). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~Except as set forth in~~ Subject to Section 14.03(b) and Section 14.07(a), the Company shall pay, deliver or pay or and deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on to converting Holders no later than the second Business Day immediately following the relevant Conversion Date, if the Company ~~elects~~ shall have elected Physical Settlement (provided that, with respect to any ~~conversion following~~ Conversion Date occurring after the Regular Record Date immediately preceding the Maturity ~~Date where Physical Settlement applies~~Date, the Company ~~shall~~ will settle any such ~~conversion~~ Conversion Obligation on the Maturity ~~Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date~~Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 ~~upon receipt of a Company Order,~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company, the Conversion Agent~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date ~~but~~ and prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding interest payment date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) for conversions of Called Notes, if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of the close of business~~ on the Regular ~~Rec~~Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in

Appears in 1 contract

Sources: Indenture (Astronics Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ July 15, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ July 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company,~~ Company shall deliver such Settlement Notice to the ~~Trustee and~~ Trustee, the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August~~ July 15, 2029, no later than the close of business on the Business Day immediately preceding ~~August~~ July 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

Appears in 1 contract

Sources: Indenture (Riot Platforms, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after ~~August~~ September 15, 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method. (ii) Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after ~~August~~ September 15, 2029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) (A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), 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 deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Conversion Agent (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Trustee ~~and the Conversion Agent (if other than the Trustee)~~ and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after ~~August~~ September 15, 2029, no later than the close of business on the Business Day immediately preceding ~~August~~ September 15, 2029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)); (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 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common 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 upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Rec

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Sources: Indenture (MICROSTRATEGY Inc)

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