Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06. (b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event. (c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted. (d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer. (e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion. (f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 4 contracts
Sources: Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP)
Conversion. The Lender shall have the right, in its sole discretion, to convert the outstanding principal and any accrued interest, fees or expenses due under this Agreement or under any Revolving Note into shares of the Company’s Common Stock, as set forth below.
(a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Lender shall have the right right, in its sole discretion, to convert (the “Optional Conversion”) their any outstanding Notesand unpaid principal portion owing hereunder or under any Revolving Note, at and accrued interest thereon and any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date fees or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate expenses (the “Conversion RateAmount”) of 81.2 shares per $1,000 principal amount ), at the election of the Notes Lender, by delivering to the Borrower a Notice of Conversion (plus cash in lieu as defined herein) (the date of fractional giving of the Notice of Conversion being a “Conversion Date”), into fully paid and nonassessable shares of Common Stock in accordance with Section 12.03); provided that as such stock exists on the Closing Date, or any Holder shares of Notes who would beneficially own capital stock of the Company into which such Common Stock shall hereafter be changed or reclassified, at the Conversion Price (as defined herein), determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice as provided herein. Upon delivery to the Company prior to any such conversion. The Conversion Rate Borrower of a completed Notice of Conversion, a form of which is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert annexed hereto as Exhibit I (the “Mandatory Notice of Conversion”), the Borrower shall issue and deliver to the Lender within four (4) any outstanding Notes into a Business Days after the Conversion Date (such third day being the “Conversion Delivery Date”) that number of shares of Common Stock per $1,000 principal for the portion of principal, interest, fees or expenses converted in accordance with the foregoing. The number of Shares of Common Stock to be issued upon each conversion shall be determined by dividing Conversion Amount by the Conversion Price. Any amount of Notes principal converted hereunder shall be available for reborrowing, at the option of the Lender, following such conversion.
(b) Subject to adjustment as provided herein, the conversion price (“Conversion Price”) per share shall be equal to (i) the Conversion Amount (the numerator); divided by (ii) eighty-five percent (85%) of the lowest daily volume weighted average price of the Company’s Common Stock during the five (5) trading days immediately prior to the Conversion Rate then Date as indicated in effect (plus cash in lieu the Notice of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days Conversion (the “Mandatory Conversion Event”denominator). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease In the event the authorized Shares of Common Stock are insufficient to accrue on any Notes on cover the date of occurrence of the Optional Conversion or the Mandatory Conversion (such dateLender’s conversion, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant Borrower shall, upon delivery of a completed Notice of Conversion, cause the number of authorized Shares of Common Stock to be increased within forty-five (45) days to an Optional Conversion or Mandatory Conversion shall be added amount equal to three (3) times the principal amount of such Note being convertedShares of Common Stock required to be issued to Lender in accordance with this Section 11.
(d) If Notwithstanding anything contained in this Section to the contrary, upon the delivery of a Holder exercises its right Notice of Conversion to require the Company Borrower, the Borrower shall have the right, on or prior to repurchase its Notes pursuant the Conversion Delivery Date, to a Prepayment Offer or a Change deliver to the Lender an amount in cash equal to the Conversion Amount as specified in the Notice of Control Offer Conversion and, in accordance with Section 4.10 or Section 4.15the event of such delivery of cash equal to the Conversion Amount to the Lender, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change said Notice of Control OfferConversion shall be null and void and no conversion shall be undertaken by the Borrower.
(e) In the event that Borrower shall pay any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock all expenses incurred or otherwise be deemed to be an “affiliate” of incurred by the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering Lender in connection with having the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion issued pursuant to this Section 12.01(a) and the restrictive legend removed from the share certificates evidencing said shares of Common Stock, including, but not limited to, any expense incurred or Mandatory Conversion pursuant to Section 12.01(b)be incurred by the Lender in order to have a legal opinion of counsel issued after the Closing Date.
Appears in 4 contracts
Sources: Senior Secured Revolving Credit Facility Agreement, Senior Secured Revolving Credit Facility Agreement (Sunpeaks Ventures, Inc.), Senior Secured Revolving Credit Facility Agreement (Sunpeaks Ventures, Inc.)
Conversion. (a) At any time following Subject to and upon compliance with the receipt provisions of Article 4 of the Required Stockholder Approval and Indenture, at the effectiveness option of the Charter AmendmentHolder thereof, Holders any portion of the principal amount of this Note that is an integral multiple of $1,000 may be converted into fully paid and non-assessable shares of Common Stock at the Conversion Rate, determined as provided in the Indenture, in effect at the time of conversion. The Holder may surrender Notes shall have for conversion at the right convert (the “Optional Conversion”) their outstanding Notes, applicable Conversion Rate at any time and from time to time, on any Business Day, prior to after the earliest of (1) if applicable, with respect to a Note called for redemption, Exchange Offer Completion Date until the close of business on the Business Day immediately preceding the Redemption Date or (2) final maturity date of the close Notes. Upon surrendering any Note for conversion, the Holder of business on the Business Day immediately preceding the Maturity Datesuch Note shall receive, into in respect of each $1,000 principal amount of Notes: shares of Common Stock, Stock at a an initial conversion rate (the “Conversion Rate”) of 81.2 160.772 shares per $1,000 principal amount of the Notes (plus cash the “Conversion Rate”), which is based upon an initial Conversion Price of approximately $6.22 per share. The Conversion Rate (and Conversion Price) are subject to adjustment as described in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any the Indenture. If a Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding receives shares of Common Stock upon conversion of a Note, such Holder’s Notes shall Holder will also receive the associated rights under any stockholder rights plan that the Company may adopt, whether or not the rights have separated from the Common Stock at the time of conversion unless, prior to conversion, the rights have expired, terminated or been exchanged. To convert a Note, a Holder must comply with the procedures for conversion set out in Section 4.03 of the Indenture. A Holder may convert a portion of a Note equal to $1,000 or any integral multiple thereof. In order to exercise the conversion right: (1) the Holder of any Definitive Note to be required to provide 61 days’ written converted must (i) complete and manually sign a notice of conversion substantially in the form set forth on the reverse of this Note (the “Conversion Notice”), (ii) deliver the Conversion Notice and the Definitive Note (and the Certificate of Conversion & Restricted Transfer, if applicable) to the Company prior Conversion Agent and the Company, and (iii) if required, furnish appropriate endorsements and transfer documents; or (2) the holder of beneficial interests in any Global Note to any be converted must comply with the Applicable Procedures to cause the beneficial interests in such conversionGlobal Note to be delivered to the Conversion Agent. The Conversion Rate is subject to adjustment In the case of either (1) or (2), the Holder of a Definitive Note or holder of beneficial interests in a Global Note will, if required, pay all transfer or similar taxes and, if required pursuant to Section 12.06.
(b4.03(b) Following the receipt of the Required Stockholder Approval and Indenture, pay funds equal to the effectiveness interest payable on the next Interest Payment Date. The date on which a Holder of a Definitive Note or holder of a beneficial interest in a Global Note completes the requirements of Section 4.03(a) of the Charter AmendmentIndenture shall be deemed to be the date of conversion (the “Conversion Date”) for purposes of Article 4 of the Indenture. On and after the Conversion Date, the conversion by such Holder or holder, as set forth in the Conversion Notice, shall become irrevocable. In case of a transaction described in clause (3) of the definition of Fundamental Change in the Indenture, solely upon receipt by the Conversion Agent of any Holder’s Conversion Notice on or subsequent to the effective date of such Fundamental Change and prior to the forty-fifth (45th) day following such effective date (or, if earlier and to the extent applicable, the close of business on the second Business Day immediately preceding the Designated Event Repurchase Date (as specified in the Designated Event Notice)), the Company shall convert pay such Holder a make-whole premium within twenty (20) days after the consummation of such Designated Event. This make-whole premium will be equal to the present value on the effective date of such Fundamental Change of all required interest payments on the Notes as if paid in cash from the effective date of such Fundamental Change through November 15, 2010 (including any accrued but unpaid interest), computed using a discount rate equal to the Reinvestment Yield (the “Mandatory ConversionDesignated Event Make-Whole Amount”). Holders will only be eligible to receive the Designated Event Make-Whole Amount if the Closing Sale Price of the Common Stock immediately following the announcement of such Fundamental Change is equal to or greater than $7.04 and less than $21.12 (as such prices may be adjusted for stock splits, stock dividends, and similar events pursuant to the terms of the Indenture). Such payment shall be payable, at the Company’s option, in (1) cash, (2) shares of Common Stock at a 5.0% discount to the Current Market Price; provided that the issuance of shares of Common Stock in payment of this make-whole premium will be subject to the Nasdaq Stock Market rules, which may require shareholder approval in certain circumstances, (3) the consideration received triggering such Designated Event, or (4) a combination of cash, shares and such consideration. In the case of any consolidation or merger of the Company with or into any other Person, any merger of another Person with or into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) or any conveyance, sale or transfer of all or substantially all of the assets of the Company, the Company or the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall notify the Trustee and the Holders at least ten (10) days prior to the record date for such transaction, or if there is no record date, at least ten (10) Trading Days prior to the anticipated effective date for such transaction. The Company, or such successor, purchasing or transferee corporation, as the case may be, as a condition precedent to such consolidation, merger, conveyance, sale or transfer, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Note then outstanding shall have the right thereafter to convert Notes only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale or transfer by a holder of the number of shares of Common Stock per $1,000 principal amount into which such Notes might have been converted immediately prior to such consolidation, merger, conveyance, sale or transfer. Such supplemental indenture shall provide for adjustments of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if and Conversion Price which shall be as nearly equivalent as may be practicable to the Daily VWAP adjustments of the Common Stock exceeds or is equal to the Threshold Conversion Rate and Conversion Price provided for in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence Article 4 of the Mandatory Conversion EventIndenture. If, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant any such consolidation, merger, conveyance, sale or transfer, the securities, cash and other property receivable thereupon by a holder of Common Stock include shares of stock or other securities and property of a Person other than the successor, purchasing or transferee corporation, as the case may be, in such consolidation, merger, conveyance or sale, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to Section 12.01(a), at any time beginning on protect the date interests of the Holders as the Company’s Board of Directors shall reasonably consider necessary by reason of the foregoing. Notwithstanding any other provision of this Note or the Optional Conversion Notice and ending with Indenture, in no event will the effectiveness Company issue more than an aggregate of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding 30,106,403 shares of Common Stock or otherwise be deemed to be an “affiliate” upon conversion of the Company for purposes Notes and in payment of the Securities Act and/or the Exchange upon such conversion, then any make-whole premium obligations unless the Company will promptly enter into a Registration Rights Agreement covering the has previously received stockholder approval for issuances of shares of Common Stock received in excess of that number of shares in accordance with, and to the extent required by, the Nasdaq Stock Market rules, and any Holder who would otherwise be entitled to receive shares of Common Stock upon such conversion.
(f) At conversion of the request Notes in excess of any Holdersuch number shall instead be entitled to receive cash in an amount equal to the Current Market Price in lieu of each share that such Holder would otherwise be entitled to receive in excess of such number. If the Company obtains stockholder approval for issuances of shares of Common Stock in excess of such number, to the extent required by the Nasdaq Stock Market rules, the Company will use its reasonable efforts have the option to cooperate with either pay Holders cash or issue shares of Common Stock upon such Holder to confirm with brokers that such Holder will not be an “affiliate” conversions and payments of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)make-whole premiums.
Appears in 4 contracts
Sources: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentSubject to compliance with Section 11.02, Holders of the Notes a Holder shall have the right to convert all or any portion (the if such portion is $2,000 principal amount or an integral multiple of $1,000 principal amount) of its Notes (“Optional Early Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1i) if applicable, the close of business on the fifth Business Day following the date of a Mandatory Conversion Notice delivered in accordance with Section 11.01(b), (ii) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2iii) the close of business on the Business Day immediately preceding the Maturity Datematurity date, into a number of shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal amount of Notes being converted equal to the Notes Conversion Rate then in effect (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.0311.03); provided that any . In addition, upon an Early Conversion, a Holder shall have the right to receive in cash, with respect to its Notes being converted, per $1,000 principal amount of Notes who would beneficially own being converted, (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunderx) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required event the Early Conversion Date occurs on or prior to provide 61 days’ written notice September 23, 2017, the Early Conversion Payment and (y) in all cases, accrued and unpaid interest to the Company prior Early Conversion Date. For the avoidance of doubt, in the event of an Early Conversion with an Early Conversion Date after September 23, 2017, Holders shall not be entitled to any such conversion. The receive the Early Conversion Rate is subject to adjustment pursuant to Section 12.06Payment.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the The Company shall have the right to convert the Notes (the “Mandatory Conversion”) any outstanding Notes ), in whole or in part, into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional sharesshares of Common Stock in accordance with Section 11.03), if each of the following conditions are satisfied: (i) if the Daily VWAP of the Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 20 Trading Days (whether or not consecutive) during any period of 30 consecutive Trading Days (the “Mandatory Conversion EventVWAP Condition”). Upon the occurrence of the Mandatory Conversion Event, ) and (ii) the Company shall deliver notice delivers to the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not notice of the Company’s election of its right to convert the Notes no later than the open of business on the second business day third Business Day immediately following the 20th Trading Day of any such 30 Trading Day period (a “Mandatory Conversion EventNotice”), which notice shall specify that the Mandatory Conversion shall occur not later than on the third business day sixth Business Day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion such notice (such date, the “Mandatory Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant ; provided that, the Company’s right to an Optional Conversion or cause a Mandatory Conversion shall be added to suspended during the principal amount of such Note being converted.
(d) If a Holder exercises its right to require period beginning on the Company to repurchase its Notes pursuant to a Prepayment Offer or date a Change of Control Offer in accordance with Section 4.10 or Section 4.15is made and continuing to, respectivelyand including, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or the applicable Change of Control Offer.
(e) In Settlement Date. For the avoidance of doubt, in the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion, Holders shall not be entitled to receive the Early Conversion pursuant to Payment or, except as provided in Section 12.01(b11.02(f), at any time beginning with accrued and unpaid interest. The Mandatory Conversion Notice shall state that the Company is exercising its right to cause a Mandatory Conversion, the Conversion Rate and Conversion Price in effect on the Mandatory Conversion Date. Notwithstanding the foregoing, the Company may only exercise its right to cause a Mandatory Conversion if, as evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent (if other than the Trustee) on the Mandatory Conversion Date, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing on, and including, the date of the Mandatory Conversion Event Notice and (y) ending 30 calendar days following on, and including, the effectiveness of such conversion, that such Holder will beneficially own Mandatory Conversion Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as determined in accordance with Section 13(dfollows:
(i) of the Exchange Act and the rules and regulations promulgated thereundereither (1) in excess of 9.99% of the outstanding all shares of Common Stock or otherwise be deemed to be an “affiliate” issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for purposes sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such conversion.shelf registration statement to remain effective and available for use from the Mandatory Conversion Date until thirty days following the Mandatory Conversion Date;
(fii) At the request Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) to be delivered on such conversion is listed or traded on The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market, or any of their respective successors (each, an “Eligible Market”) and shall not then be suspended from trading on such Eligible Market;
(iii) at or prior to the settlement date of the Mandatory Conversion, for any HolderNotes validly surrendered for conversion with an Early Conversion Date prior to the Mandatory Conversion Date in accordance with the terms of this Indenture, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of the Notes to the Holders in accordance with Section 11.01(a);
(iv) shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of The New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and
(v) no Event of Default shall have occurred and be continuing. For the avoidance of doubt, the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant may exercise its right to Section 12.01(a) or cause more than one Mandatory Conversion pursuant so long as any Notes are outstanding so long as it complies with the other requirements of this Section 11.01(b). If the Company exercises its right to Section 12.01(bcause Mandatory Conversion in part, the Conversion Agent will select the Notes to be converted pro rata, by lot or by any other method the Conversion Agent in its sole discretion deems fair and appropriate (or, in the case of Notes represented by Global Notes, in such manner as DTC may require), in denominations of $2,000 or any integral $1,000 multiple in excess thereof.
Appears in 3 contracts
Sources: First Supplemental Indenture (Whiting Petroleum Corp), First Supplemental Indenture (Whiting Petroleum Corp), Third Supplemental Indenture (Whiting Petroleum Corp)
Conversion. (ai) At any time following the receipt Shares of the Required Stockholder Approval and Convertible Preferred Stock will be convertible at the effectiveness option of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding NotesHolder thereof, at any time and from time to time, on any Business Day, prior into a number of shares of Class A Common Stock equal to the earliest aggregate liquidation preference amount of (1) the shares of Convertible Preferred Stock surrendered for conversion divided by the Conversion Price as then in effect, except that, if applicable, with respect to a Note shares of Convertible Preferred Stock are called for redemption, the conversion right will terminate at the close of business on the Business Day immediately preceding Redemption Date. No fractional shares or securities representing fractional shares of Class A Common Stock will be issued upon conversion; in lieu of fractional shares of Class A Common Stock, the Redemption Date Company will, at its option, either round up the number of shares to be issued to the nearest whole share or (2) pay a cash adjustment based upon the current market price of the Class A Common Stock at the close of business on the first Business Day immediately preceding the Maturity Datedate of conversion. The Convertible Preferred Stock shall be converted by the holder thereof by surrendering the certificate or certificates representing the shares of Convertible Preferred Stock to be converted, into appropriately completed, to the transfer agent for the Class A Common Stock. The transfer agent shall issue one or more certificates representing the Class A Common Stock to be issued in the conversion in the name of names requested by the Holder. The transfer agent will deliver to the Holder a new certificate representing the shares of Convertible Preferred Stock in excess of those being surrendered for conversion. Effective as of the filing of the Amendment, at a conversion rate the Conversion Price shall be $16.00 (the “Conversion RatePrice”). Such Conversion Price shall be adjusted as hereinafter provided.
(ii) of 81.2 shares per $1,000 principal amount of (A) In case the Notes Company shall (plus cash I) pay a dividend or distribution in lieu of fractional shares of its Class A Common Stock in accordance with Section 12.03); provided that any Holder on its shares of Notes who would beneficially own Class A Common Stock, (as determined in accordance with Section 13(dII) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the subdivide its outstanding shares of Class A Common Stock upon conversion into a greater number of shares, (III) combine its outstanding shares of Class A Common Stock into a smaller number of shares, or (IV) issue, by reclassification of its shares of Class A Common Stock, any shares of its capital stock (each such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any transaction being called a “Stock Transaction”), then and in each such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendmentcase, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company immediately prior thereto shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify be adjusted so that the Mandatory Conversion shall occur not later than Holder of a share of Convertible Preferred Stock surrendered for conversion after the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease record date fixing stockholders to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (be affected by such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion Stock Transaction shall be added entitled to receive upon conversion the principal amount number of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change shares of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, Class A Common Stock which such Holder may convert its Notes into Common would have been entitled to receive after the happening of such event had such share of Convertible Preferred Stock only if it withdraws its election been converted immediately prior to have its Notes repurchased in connection with such Prepayment Offer or Change record date. Such adjustment shall be made whenever any of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case such events shall happen, but shall also be effective retroactively as to shares of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on Convertible Preferred Stock converted between such record date and the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request happening of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)event.
Appears in 3 contracts
Sources: Master Transaction Agreement (Cig Media LLC), Master Transaction Agreement (Ion Media Networks Inc.), Master Transaction Agreement (Cig Media LLC)
Conversion. (ai) At any time following the receipt Automatic Conversion on Next Equity Financing. The outstanding principal balance and unpaid accrued interest on this Note shall automatically convert into shares of the Required Stockholder Approval and Company's equity securities at the effectiveness closing of the Charter Amendment, Holders Company's next equity financing in which gross aggregate proceeds to the company exceeds $1,000,000 (the "Next Equity Financing") including this Note and all other Notes which are converted into Preferred Stock: provided that the sale of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Company's Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of to its employees, directors, and consultants, or the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares issuance of Common Stock upon exercise or conversion of such Holder’s Notes shall be required to provide 61 days’ written notice securities outstanding prior to the Company prior to any such conversiondate hereof shall not constitute a Next Equity Financing. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes such equity securities to be issued upon such conversion shall be equal to the Conversion Rate then in effect quotient obtained by dividing (plus cash in lieu of fractional sharesa) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect outstanding principal and unpaid accrued interest due on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes this Note on the date of occurrence conversion by (b) the price per share of the Optional Conversion or equity securities sold to the Mandatory Conversion (such date, investors in the “Conversion Date”)Next Equity Financing. The accrued and unpaid interest on any issuance of such shares upon conversion of this Note being converted pursuant to an Optional Conversion or Mandatory Conversion this Section 2(a)(i) shall be added upon and subject to the principal amount same tem1sand conditions applicable to the Next Equity Financing. Investor agrees to execute all necessary documents in connection with the conversion of such this Note being convertedand the Next Equity Financing including but not limited to. a definitive stock purchase agreement.
(dii) If Conversion at Company's Option. At any time after the Maturity Date in the event that the Next Equity Financing has not yet occurred the outstanding principal balance and unpaid accrued interest on this Note shall, at the Company’s option, be converted into shares of a Holder exercises its right new class of equity securities designed "Series A Preferred Stock." The number of shares of Series A Preferred Stock to require be issued upon such conversion shall be equal to the quotient obtained by dividing (a) the outstanding principal and unpaid accrued interest due on this Note on the date of conversion, by (b) the price per share of the Series A Preferred Stock, such price per share to be calculated based on “pre-money” valuation for the Company to repurchase its Notes at such time of $2.000.000. The issuance of Series A Preferred Stock upon conversion of this Note pursuant to a Prepayment Offer or a Change this Section 2(a)(ii) shall be upon terms and conditions that are normal and customary for similar transactions of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election this nature. Investor agrees to have its Notes repurchased execute all necessary documents in connection with such Prepayment Offer or Change conversion of Control Offerthis Note. Including, but not limited to, a definitive stock purchase agreement.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 3 contracts
Sources: Note and Warrant Purchase Agreement (Amarantus BioSciences, Inc.), Note and Warrant Purchase Agreement (Amarantus BioSciences, Inc.), Note and Warrant Purchase Agreement (Jumpkicks, Inc.)
Conversion. (a) At any time following Commencing six months from the receipt of date the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert Company first receives proceeds from its initial public offering (the “Optional ConversionIPO Date”) their outstanding Notesuntil this Note is no longer outstanding, the principal of and, with the consent of the Company, the accrued interest on this Note shall be convertible, in whole at any time or in part from time to time, into shares of Common Stock at the option of the Holder, during the five Trading Days commencing on the first, second, third, fourth and fifth anniversaries of the Original Issue Date of the Note at any time and from time to time; provided, on that if any Business Day, such anniversary shall occur prior to six months from the earliest IPO Date, this Note can be first converted in whole or in part during the five Trading Days commencing on the Trading Day following six months from the IPO Date. The Holder shall effect conversion by delivering to the Company a Notice of (1) if applicable, with respect to a Note called for redemptionConversion, the close form of business on which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of and, with the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) consent of the Exchange Act Company, interest on this Note to be converted and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes date which shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not no later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on Business Day after the date the Notice of occurrence of Conversion is received by the Optional Conversion or the Mandatory Conversion Company (such date, the “Conversion Date”). The If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted in which case the Holder shall surrender this Note as promptly as is reasonably practicable after such conversion without delaying the Company’s obligation to deliver the shares on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion the Share Delivery Date. Conversions hereunder shall be added to have the effect of lowering the outstanding principal amount of such this Note being converted.
(d) If a in an amount equal to the applicable conversion. The Holder exercises its right to require and the Company shall maintain records showing the principal amount(s) converted and the date of such conversion(s). The Company may deliver an objection to repurchase its Notes pursuant to a Prepayment Offer or a Change any Notice of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, Conversion within one (1) Business Day of delivery of such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change Notice of Control Offer.
(e) Conversion. In the event that of any dispute or discrepancy, the records of the Holder notified the Company (1) shall be controlling and determinative in the case absence of an Optional Conversion pursuant to Section 12.01(a)manifest error. The Holder, at and any time beginning assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionface hereof.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 3 contracts
Sources: 4% Secured Subordinated Convertible Note (SolarMax Technology, Inc.), 4% Secured Subordinated Convertible Note (SolarMax Technology, Inc.), Convertible Note Agreement (SolarMax Technology, Inc.)
Conversion. (i) Automatic Conversion on Next Equity Financing. The outstanding principal balance and unpaid accrued interest on this Note shall automatically convert into shares of the Company's equity securities at the closing of the Company's next equity financing in which gross aggregate proceeds to the company exceeds $1,000,000 (the "Next Equity Financing"), including this Note and all other Notes which are converted into Company equity; provided that the sale of the Company's Common Stock to its employees, directors, and consultants, or the issuance of Common Stock upon exercise or conversion of securities outstanding prior to the date hereof shall not constitute a Next Equity Financing. The number of shares of such equity securities to be issued upon such conversion shall be equal to the quotient obtained by dividing (a) the outstanding principal and unpaid accrued interest due on this Note on the date of conversion, by (b) the price per share of the equity securities sold to the investors in the Next Equity Financing after applying a two thirds discount (2/3 or 66.67%). For example, if the price per share of the Next Equity Financing were $9.00 per share then the conversion price would be $3.00 per share. The issuance of such shares upon conversion of this Note pursuant to this Section 2(a)(i) shall be upon and subject to the same terms and conditions applicable to the Next Equity Financing. Investor agrees to execute all necessary documents in connection with the conversion of this Note and the Next Equity Financing, including, but not limited to, a definitive stock purchase agreement.
(ii) Conversion at Company's Option. At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding after the Maturity Date, into Common Stockin the event that the Next Equity Financing has not yet occurred, the outstanding principal balance and unpaid accrued interest on this Note shall, at a conversion rate the Company's option, be converted into shares issued to investors at the most recently closed Company equity financing (excluding issuances to Company employees and consultants pursuant to compensation plans approved by the “Conversion Rate”) Company's Board of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03Directors); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes Company stock to be issued upon such conversion shall be equal to the Conversion Rate then in effect quotient obtained by dividing (plus cash in lieu of fractional sharesa) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect outstanding principal and unpaid accrued interest due on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes this Note on the date of occurrence conversion, by (b) the price per share of the Optional Conversion or equity securities sold to the Mandatory Conversion (such date, investors at the “Conversion Date”)most recently closed Company equity financing. The accrued and unpaid interest on any issuance of Company equity upon conversion of this Note being converted pursuant to an Optional Conversion or Mandatory Conversion this Section 2(a)(ii) shall be added upon terms and conditions of the most recently closed Company equity financing. Investor agrees to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased execute all necessary documents in connection with such Prepayment Offer or Change conversion of Control Offerthis Note, including, but not limited to, a definitive stock purchase agreement.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 3 contracts
Sources: Convertible Promissory Note Agreement (Amarantus BioSciences, Inc.), Convertible Promissory Note Agreement (Amarantus BioSciences, Inc.), Convertible Promissory Note Agreement (Jumpkicks, Inc.)
Conversion. (a) At any time following A Holder may surrender Securities for conversion into cash and, if applicable, shares of Common Stock on a Conversion Date if, as of such Conversion Date, the receipt Closing Sale Price of our Common Stock, for at least 20 trading days in the 30 consecutive trading-day period ending on the trading day prior to the Conversion Date is at least 110% of the Required Stockholder Approval and the effectiveness Conversion Price per share of the Charter AmendmentCommon Stock on such preceding trading day. A Holder may also surrender Securities for conversion into cash and, Holders if applicable, shares of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, Common Stock if at any time and from time to time, on any Business Day, prior either: (i) the senior implied rating assigned to the earliest Company by M▇▇▇▇’▇ Investors Service, Inc. has been downgraded to B2 or below, and (ii) the corporate credit rating assigned to the Company by Standard & Poor’s is downgraded to B or below, for so long as such downgrades remain in effect. In addition, a Holder may surrender for conversion a Security which has been called for redemption pursuant to Section 5 of (1) this Security, even if the foregoing provisions have not been satisfied, and such Securities may be surrendered for conversion into cash and, if applicable, with respect to a Note called for redemption, shares of Common Stock until the close of business on the Business Day prior to the Redemption Date. In the event that the Company elects to distribute to all holders of the Company’s Capital Stock (i) certain rights or warrants entitling them to subscribe for or purchase Common Stock at less than the Current Market Price as defined in Section 11.11 of the Indenture for such issuance, or, (ii) cash or debt securities, which distribution has a per share value exceeding 10% of the market price of our common stock as of the trading day immediately preceding the Redemption Date declaration date for such distribution, a Holder may surrender Securities for conversion on the date the Company gives notice to such Holder of such right, which shall be not less than 15 days prior to the record date for such dividend or (2) distribution, and such Holder may surrender such Securities for conversion at any time thereafter until the close of business on the Business Day immediately preceding prior to the Maturity Daterecord date or until the Company announces that such distribution shall not take place. Finally, into Common Stockin the event that the Company is a party to a consolidation, at merger, transfer or lease of all or substantially all of its assets or if a conversion rate transaction described in clause (the “Conversion Rate”2) of 81.2 shares per $1,000 principal amount the definition of “Change of Control” under Section 6 of this Security occurs prior to July 21, 2008 and results in an increase in the Conversion Rate of the Notes (plus cash Securities, in lieu of fractional shares of each case pursuant to which the Common Stock would be converted into cash, securities or other assets, a Holder may surrender Securities for conversion at any time from and after the date which is 15 days prior to the anticipated effective time of the transaction until and including the date which is 15 days after the actual date of such transaction (or if such transaction also results in Holders having a right to require us to purchase their Securities, until the Change of Control Purchase Date) (assuming, in a case in which the Company’s stockholders may exercise rights of election, that a Holder of Securities would not have exercised any rights of election as to the stock, other securities or other property or assets receivable in connection therewith and received per share the kind and amount received per share by plurality of nonelecting shares). A Security in respect of which a Holder has delivered a Purchase Notice exercising the option of such Holder to require the Company to purchase such Security may be converted only if such notice of exercise is withdrawn in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) the terms of the Exchange Act and Indenture. A Security in respect of which a Holder has delivered a Change of Control Purchase Notice exercising the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion option of such Holder’s Notes shall be required Holder to provide 61 days’ written notice to require the Company prior to any purchase such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”)Security may be not converted. Upon the occurrence of the Mandatory Conversion Eventconversion, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion no payment or the Mandatory Conversion (such date, the “Conversion Date”). The adjustment for accrued and unpaid interest on any Note being a converted pursuant to an Optional Conversion or Mandatory Conversion shall be added Security (other than the payment of interest to the principal amount Holder of such Note being converted.
(d) If a Holder exercises its right to require Security at the Company to repurchase its Notes pursuant to close of business on a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion record date pursuant to Section 12.01(a1 of this Security) or for dividends or distributions on the Common Stock shall be made. The initial conversion price is $17.859 per share of Common Stock (the “Conversion Price”), at any time beginning on the date subject to adjustment in certain events described in Sections 11.06, 11.07, 11.08, 11.09, and 11.10 of the provision Indenture. No adjustment in the Conversion Price will be required unless such adjustment would require a change of at least 1% in the Optional Conversion Notice and ending Price then in effect; provided that any adjustment that would otherwise be required to be made shall be carried forward, aggregated with the effectiveness of such Optional Conversionany previous adjustment which would otherwise have been made, and (2) taken into account in any subsequent adjustment. The Company from time to time may voluntarily reduce the case Conversion Price for a period of a Mandatory at least 20 days. The Conversion pursuant to Section 12.01(b), at any time beginning with the date Price shall be adjusted for dividends or distributions on shares of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined Common Stock payable in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed other Capital Stock; subdivisions, combinations or certain reclassifications of Common Stock; distributions to be an “affiliate” all holders of the Company for purposes Common Stock of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the certain rights to purchase shares of Common Stock received upon for a period expiring within 60 days after the record date for such conversion.
(f) At distribution at a price per share less than the request Current Market Price per share as defined in the Indenture; distributions to such holders of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” assets or debt securities of the Company for purposes or certain rights to purchase securities of the Company (excluding certain cash dividends or distributions); distributions to such holders consisting exclusively of cash; and in the event that a tender or exchange offer is made by the Company or any Subsidiary for all or a portion of the Common Stock and the tender or exchange offer requires the payment of consideration per share having a fair market value exceeding 110% of the Current Market Price per share of Common Stock. To convert a Security, a Holder must (1) complete and sign the conversion notice annexed to the Security, (2) surrender the Security to the Conversion Agent, (3) furnish the appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, and (4) pay any tax or duty which may be payable in respect of any transfer involving the issue or delivery of Common Stock in the name of a Person other than the Holder thereof. In the case of Global Securities, conversion notices may be delivered and such Securities Act and/or may be surrendered for conversion in accordance with the Exchange Act upon any Optional Conversion pursuant Applicable Procedures. A Holder may convert a portion of a Security if the portion is $1,000 or an integral multiple of $1,000. If the Company is a party to Section 12.01(a) a consolidation or Mandatory Conversion pursuant merger, or a transfer or a lease of all or substantially all of its assets or a merger which reclassifies or changes its outstanding Common Stock, the right to Section 12.01(b)convert a Security into cash and, if applicable, Common Stock may be changed into a right to convert it into securities, cash or other assets of the Company or another person.
Appears in 3 contracts
Sources: Indenture (Belden CDT Inc.), Indenture (Belden CDT Inc.), Indenture (Belden CDT Inc.)
Conversion. (a) At This Note, and any time following accrued and unpaid Interest hereon, at the receipt option of the Required Stockholder Approval Holder, shall be convertible into shares of common stock of the Obligor, par value $0.001 per share (the "Common Stock") in whole or in part at any time, at a conversion price (the "Conversion Price") The principal and any accrued and unpaid Interest may be converted, at the option of the holder, into the Common Stock at a price per share of calculated at a 20% discount to the 30-day average bid price of the Common Stock as may be quoted on the OTCQB, OTCQX Markets or listing on a national stock exchange and in no case below a price of $0.20 per share. The Holder shall effect conversions under Section 4(a) by surrendering to the Obligor the Note and by delivering to the Obligor a written conversion notice (the "Holder Conversion Notice"). Each Holder Conversion Notice shall specify the amount of Principal and Interest to be converted and the effectiveness date on which such conversion is to be effected, which date may not be prior to the date the Holder delivers such Holder Conversion Notice to the Obligor (the "Conversion Date"). If the Holder is converting less than the entire Principal amount (and pro rata Interest) of this Note, then the Obligor shall deliver to the Holder a new Note for such Principal amount that has not been converted within five (5) business days of the Charter AmendmentConversion Date. Each Holder Conversion Notice, Holders of once given, shall be irrevocable.
(b) If the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, Obligor at any time and time, or from time to time, on subdivides (by any Business Daystock split, stock dividend, recapitalization or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. If the earliest Obligor at any time, or from time to time, combines (by combination, reverse stock split or otherwise) one or more classes of (1) if applicableits outstanding shares of Common Stock into a smaller number of shares, with respect the Conversion Price in effect immediately prior to a Note called for redemption, such combination will be proportionately increased. Any adjustment under this Section shall become effective at the close of business on the Business Day date the subdivision or combination becomes effective or, in the case of a stock dividend, the date of such event. Whenever the Conversion Price is adjusted the Obligor shall promptly mail notice of such adjustment to the Holder, which notice shall set forth the Conversion Price after adjustment, the date on which such adjustment became effective and a brief statement of the facts resulting in such adjustment.
(c) If the Obligor, by reclassification of securities or otherwise, shall change any of the securities as to which conversion rights under this Note exist into the same or a different number of securities of any other class or classes, this Note shall thereafter be convertible into such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the conversion rights under this Note immediately preceding prior to such reclassification or other change, and the Redemption Date Conversion Price therefore shall be appropriately adjusted, all subject to further adjustment as provided in this Section 4. No adjustment shall be made pursuant to this Section 4(c) upon any conversion or redemption of the Common Stock which is the subject of Section 4(d).
(2d) In case of any capital reorganization of the capital stock of the Obligor (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), or any merger or consolidation of the Obligor with or into another corporation, or the sale of all or substantially all the assets of the Obligor then, and in each such case, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the Holder of this Note shall thereafter be entitled to receive upon conversion of this Note, the number of shares of stock or other securities or property (including cash) to which the holder of the shares deliverable upon conversion of this Note would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Note had been converted immediately before such reorganization, merger, consolidation, sale or transfer, all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4(d) shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation that are at the time receivable upon the conversion of this Note. In all events, appropriate adjustment (as determined in good faith by the Obligor's Board of Directors) shall be made in the application of the provisions of this Note with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Note shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon conversion of this Note.
(e) In case all or any portion of the authorized and outstanding shares of Common Stock of the Obligor are redeemed or converted or reclassified into other securities or property pursuant to the Obligor's Certificate of Incorporation or otherwise, or the Common Stock otherwise ceases to exist, then, in such case, the Holder of this Note, upon conversion hereof at any time after the date on which the Common Stock is so redeemed or converted, reclassified or ceases to exist (the "Termination Date"), shall receive, in lieu of the number of Conversion Shares that would have been issuable upon such conversion immediately prior to the Termination Date, the securities or property that would have been received if this Note had been converted in full and the Common Stock received thereupon had been simultaneously converted immediately prior to the Termination Date, all subject to further adjustment as provided in this Note.
(f) Not later than ten (10) business days after the Conversion Date, the Obligor will deliver, or will cause to be delivered, to the Holder a certificate or certificates representing the number of shares of Common Stock being acquired upon the conversion of all or a portion of the Principal amount of or Interest under this Note (the "Conversion Shares"). If the Obligor fails to deliver to the Holder a certificate or certificates representing the Conversion Shares pursuant to Section 4(a) of this Note by the close of business on the Business Day immediately preceding tenth business day after the Maturity Datedate of exercise, into Common Stockthen the Holder will have the right to rescind such exercise. Nothing herein shall limit a Holder's right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Obligor's failure to timely deliver certificates representing Conversion Shares upon conversion rate of this Note as required pursuant to the terms hereof.
(the “Conversion Rate”g) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional Certificates representing shares of Common Stock to be delivered upon a conversion hereunder may bear restrictive legends and may be Restricted Securities as defined in accordance with Section 12.03the Purchase Agreement; such securities may be resold without registration under the Securities Act only in certain limited circumstances. Such shares may have affixed thereto a legend substantially in the following form: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"); provided that any Holder , OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
(h) The Obligor shall at all times reserve out of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act its authorized and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding unissued shares of Common Stock upon a number of Conversion Shares necessary to satisfy a full conversion of such Holder’s Notes the Principal amount of and Interest under this Note (the "Required Reserve Amount"). If at any time while this Note remains outstanding the Obligor does not have a sufficient number of authorized shares of Common Stock to satisfy its obligation to reserve the Required Reserve Amount (an "Authorized Share Failure"), then the Obligor shall take all action necessary to increase the Obligor's authorized shares of Common Stock to an amount sufficient to satisfy the Required Reserve Amount. As soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60) days after the occurrence, the Obligor shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. For the avoidance of doubt, an Authorized Share Failure shall constitute an Event of Default pursuant to Section 9 of this Note, notwithstanding the Obligor's obligation or efforts to comply with the requirements set forth in the immediately preceding sentence.
(i) Upon a conversion hereunder the Obligor shall not be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number deliver stock certificates representing fractions of shares of Common Stock per $1,000 principal amount of Notes equal Stock. All fractional shares shall be rounded to the Conversion Rate then in effect (plus cash in lieu nearest whole share as full, final and complete satisfaction of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day its obligations for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventany conversion hereunder.
(cj) Interest The transfer of certificates for Conversion Shares shall cease be made without cost or charge to accrue on any Notes on the date of occurrence Holder in respect of the Optional Conversion issue or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount delivery of such Note being converted.
(d) If a Holder exercises its right certificate, provided that the Obligor shall not be required to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change pay any tax that may be payable in respect of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) transfer involved in the case issuance and delivery of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange certificate upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(fk) At Any and all notices or other communications or deliveries to be provided by the request of Holder hereunder, including, without limitation, any HolderConversion Notice, shall be in writing and delivered in accordance with the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” Section 9.2 of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Purchase Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Teo Foods Inc), Stock Purchase Agreement (Teo Foods Inc)
Conversion. (a) At Subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), at any time following the receipt date of the Required Stockholder Approval this Note and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time up to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, the then outstanding Obligations under this Note (or any portion thereof) may be converted into fully paid and nonassessable shares of Company Common Stock, at a conversion rate $0.0001 par value per share (the “Conversion RateShares”) ), at the sole election of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock Lender upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event), which notice Conversion Notice shall specify that state the Mandatory Conversion proposed effective date of such conversion (which date shall occur not later be no fewer than the third ten (10) business day days following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence delivery of the Optional Conversion or the Mandatory Conversion Notice) (such date, the “Conversion Date”). The accrued Obligations hereunder shall convert at a conversion price equal to $3.00 per share, subject to adjustment for any stock dividend, stock split, combination or other similar recapitalization event with respect to the Company’s Common Stock (each a “Recapitalization Event”); provided, however, that if prior to the Maturity Date the Company offers and unpaid interest sells its Common Stock (or other securities that are convertible into or exercisable for shares of Common Stock) in a private placement primarily intended to raise capital at a price per share of Common Stock of $2.50 or less (subject to adjustment for any Recapitalization Event), then the conversion price of the Obligations under this Note shall be reduced to such Common Stock offer price plus $0.50 per share (the applicable conversion price with respect to a conversion under this Section 6(a) hereinafter is referred to as the “Conversion Price”).
(b) Notwithstanding the conversion rights set forth in Section 6(a) above, subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), in the event that the closing bid price per share of Company Common Stock as traded on the principal securities exchange or securities market on which the Common Stock are then traded equals or exceeds $10.00 (subject to adjustment for any Recapitalization Event) for ten (10) Trading Days (as defined below) in any fifteen- (15-)Trading Day period, the then-outstanding Obligations under this Note being (or any portion thereof) may be converted into Conversion Shares, at the sole election of the Company following delivery of the Conversion Notice to Lender, which Conversion Notice shall state the proposed Conversion Date (which date, for the sake of clarity, shall be no fewer than ten (10) business days following the date of delivery of the Conversion Notice) at a conversion price equal to the then-current Conversion Price.
(c) Notwithstanding anything in this Section 6 to the contrary, the Company shall not effect the conversion of this Note, and Lender shall not have the right to convert this Note, to the extent that the aggregate number of Conversion Shares issued upon conversion of this Note and the other Notes issued under the Note Agreement (together with any other securities issued by the Company that are deemed integrated into the issuance of the Notes under the Note Agreement pursuant to an Optional Conversion or Mandatory Conversion shall applicable NASDAQ listing rules) would be added in excess of 19.99% of the shares of Company Common Stock outstanding immediately prior to the principal amount issuance of this Note. In the event the holders of the Notes issued under the Note Agreement elect to convert the Notes pursuant to Section 6(a), and such Notes will not be fully convertible due to the limitations set forth in this Section 6(c), the Company shall use its commercially reasonable efforts to obtain stockholder approval of the issuance of the Notes in accordance with NASDAQ listing rule 5635(d) as soon as reasonably practicable, including by calling a special meeting of stockholders. For purposes of this Section 6(c), the terms “commercially reasonable efforts” shall include, without limitation, the obligation of the Company take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than 90 days after Lender’s request for the same (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for, among other things, the issuance and sale of the Conversion Shares to Lender (the “Proposal”). In the event the Proposal is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after Lender’s request for the same, to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such Note being convertedproxy materials) to the stockholders of the Company. Lender shall promptly furnish in writing to the Company such information relating to such Lender and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Lender thereof.
(d) If Upon the Conversion Date with respect to a Holder exercises its right conversion of this Note pursuant to require either Section 6(a) or 6(b) above, Lender hereby agrees to deliver the original of this Note to the Company to repurchase its Notes pursuant to a Prepayment Offer for cancellation (or a Change of Control Offer in accordance with Section 4.10 notice to the effect that the original Note has been lost, stolen or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if destroyed and an agreement acceptable to the Company whereby Lender agrees to indemnify the Company from any loss incurred by it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer this Note); provided, however, that upon the Conversion Date, this Note (or Change portion thereof) shall be deemed converted and of Control Offerno further force and effect, whether or not it is delivered for cancellation as set forth in this sentence.
(e) In On or before the event that any Holder notified second Trading Day following the Conversion Date (the “Share Delivery Date”), the Company shall, (1i) provided that the Company’s transfer agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program (the case “FAST Program”) and so long as the certificates therefor are not required to bear a legend regarding restriction on transferability, upon the request of an Optional Conversion pursuant to Section 12.01(a)Lender, at any time beginning on the date credit such aggregate number of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock to which Lender is entitled pursuant to such exercise to Lender’s or otherwise be deemed its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (ii), if the Company’s transfer agent is not participating in the FAST Program or if the certificates are required to be an “affiliate” bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address as specified in the Conversion Notice or as provided by Lender to the Company, a certificate, registered in the Company’s share register in the name of Lender or its designee, for the Company for purposes number of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon to which Lender is entitled pursuant to such conversion.
(f) At exercise. Upon the request Conversion Date, Lender shall be deemed for all corporate purposes to have become the holder of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” record of the Company for purposes Conversion Shares with respect to which this Note (or portion thereof) has been converted, irrespective of the Securities Act and/or date such Conversion Shares are credited to the Exchange Act upon any Optional Holder’s DTC account or the date of delivery of the certificates evidencing such Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Shares, as the case may be.
Appears in 2 contracts
Sources: Subordination Agreement (Determine, Inc.), Subordination Agreement (Determine, Inc.)
Conversion. (a) At any time following the receipt The conversion price for each share of the Required Stockholder Approval Series E Preferred Stock shall equal $2.13 and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert be subject to adjustment as set forth in Section 8 below (the “Optional ConversionConversion Price”) their outstanding Notes). Subject to obtaining shareholder approval pursuant to Nasdaq Marketplace Rules as described below, each share of Series E Preferred Stock shall be convertible in accordance with the terms of this Section 8, at any time and from time to timetime from and after February 28, on any Business Day, prior to 2019 at the earliest option of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Dateholder thereof, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount determined by dividing the Liquidation Preference of Notes equal to such share of Series E Preferred Stock, plus the aggregate accrued or accumulated and unpaid dividends thereon through the Conversion Rate then in effect Date (plus cash in lieu of fractional shares) if as defined below), by the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Conversion Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days the Conversion Date. A holder of the Series E Preferred Stock shall effect any such conversion by providing the Corporation with a written conversion notice (the each, a “Mandatory Conversion EventNotice of Conversion”). Upon Each Notice of Conversion shall specify the occurrence number of the Mandatory Conversion Eventshares of Series E Preferred Stock to be converted, the Company shall deliver notice number of shares of Series E Preferred Stock owned prior to the Holders of the Notesconversion at issue, the Trustee number of shares of Series E Preferred Stock owned subsequent to the conversion at issue and the Conversion Agent (if other than the Trustee) date on which such conversion is to be effective (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such effective date, the “Conversion Date”); provided, however, that the Conversion Date may not be less than 30 days after the date on which the Notice of Conversion is delivered to the Corporation. The accrued and unpaid interest on any Note being converted pursuant to an Optional If a Conversion Date is not specified, or Mandatory is less than 30 calendar days after delivery of the Notice of Conversion, the Notice of Conversion shall be added to effective on the principal amount 30th day (or if such day is not a Business Day, the next Business Day) following delivery of such Note being convertedthe Notice of Conversion.
(db) If Upon receipt of a Notice of Conversion, the Corporation shall promptly notify all other holders of Series E Preferred Stock, if any (each, a “Non-converting Holder”), that a Notice of Conversion has been delivered and provide each Non-converting Holder exercises its right with a copy of such Notice of Conversion. The Board shall deliver a waiver of the Ownership Limit to require the Company to repurchase its Notes a Non-converting Holder pursuant to a Prepayment Offer or a Change Article IX(A)(7) of Control Offer the Articles prior to the Conversion Date if (i) such Non-converting Holder provides the Board the representations and undertakings specified in accordance with Section 4.10 or Section 4.15Article IX(A)(7) of the Articles prior to the Conversion Date and (ii) the Board has received the opinion of counsel specified in Article IX(A)(7) of the Articles prior to the Conversion Date (which the Corporation shall use commercially reasonable efforts to obtain, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) at the Corporation’s expense). In the event that a Non-converting Holder fails to provide such representations and undertakings, or the Corporation is unable to obtain such opinion of counsel notwithstanding commercially reasonable efforts to do so, the minimum number of shares of Series E Preferred Stock held by such Non-converting Holder necessary to cause such Non-converting Holder to satisfy the Ownership Limit shall automatically without any further action by such Non-converting Holder notified or the Company Corporation convert (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending along with the effectiveness aggregate accrued or accumulated and unpaid dividends thereon) into an aggregate number of such Optional Conversion, and shares of Common Stock (2) in the case including any fraction of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as share) determined in accordance with this Section 13(d) 8 on the Conversion Date, concurrently with the conversion of the Exchange Act and shares specified in the rules and regulations promulgated thereunder) in excess Notice of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionConversion.
(fc) At the request first annual meeting of any Holdershareholders following the issuance of the Series E Preferred Stock, the Company will Corporation shall seek (and use its commercially reasonable efforts to cooperate obtain) shareholder approval of an amendment to the Articles that, in connection with such Holder to confirm with brokers that such Holder will not be an “affiliate” any conversion of the Company for purposes Series E Preferred Stock, eliminates the requirement that the Board obtain such representations and undertakings from a Person as are reasonably necessary to ascertain that no individual’s Beneficial Ownership or Constructive Ownership of shares of the Securities Act and/or Series E Preferred Stock will violate the Exchange Act upon any Optional Conversion pursuant Ownership Limit, so long as the Board is able to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(bobtain the opinion of counsel specified in Article IX(A)(7).
Appears in 2 contracts
Sources: Conversion Agreement (Condor Hospitality Trust, Inc.), Conversion Agreement (Condor Hospitality Trust, Inc.)
Conversion. (a) At any time following or from time to time after the receipt occurrence and during the continuance of the Required Stockholder Approval and the effectiveness an Event of the Charter AmendmentDefault, Holders of the Notes or four hundred fifty (450) days after NDA Filing, Lender shall have the right convert option to convert, in whole or in part, the outstanding principal balance of and all accrued interest on the Pre-Approval Note, into shares of common stock of Borrower ("Common Stock") in accordance with the “Optional Conversion”) their outstanding Notes, at provisions of this Agreement. At any time and or from time to time, on any Business DayLender shall have the option to convert, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionin whole or in part, the close outstanding principal balance of business and all accrued interest on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity DateFirst Year Sales Note, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with the provisions of this Agreement. Notwithstanding the foregoing, in the event that Lender exercises its conversion rights under this Section 12.03); provided that any Holder 2.07 to convert in part outstanding principal and interest amounts under the Notes and such conversion results in Lender owning in excess of Notes who would beneficially own twenty percent (as determined in accordance with Section 13(d20%) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ Stock, then promptly following written notice thereof to the Company prior Lender by Borrower, Lender will exercise its conversion rights with respect to any such conversionremaining principal and interest under the Notes. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal into which the Notes may be converted shall be equal to (i) the total amount of outstanding principal balance and accrued interest being converted, divided by (ii) the Fair Market Value as of the Conversion Effective Date (as defined below); provided, however, that if Lender converts any portion of the Notes after the occurrence of an Event of Default under Section 7.01 (a) or 7.01(d) hereof and after a notice referred to in Section 7.02, then the number of shares of Common Stock into which the Notes may be converted shall be equal to (i) the total amount of outstanding principal balance and accrued interest being converted, divided by (ii) the Default Conversion Price as of the Conversion Effective Date. (Shares issued upon conversion of the Notes are sometimes referred to herein as the "Conversion Shares.") Promptly following Lender's written request, Borrower will inform Lender in writing of the percentage of the outstanding Common Stock owned by Lender. Notwithstanding the foregoing, Lender may not convert any or all of the outstanding principal balance of and accrued interest on the Notes within twenty (20) days of any sale of Common Stock by Lender or its Affiliates, provided that this twenty (20) day waiting period shall not apply to the conversion of the Notes after the occurrence and during the continuance of an Event of Default under Section 7.01(a) or 7.01(d) hereof or an Event of Default under Section 7.01(g) or 7.01(h).
(b) Lender must give written notice to Borrower of its intent to convert the Notes into Conversion Shares. Such notice must state (i) the amount of the outstanding principal and interest under the Notes to be converted, (ii) the name or names in which the certificate(s) for the Conversion Shares are to be issued, and (iii) the date upon which such conversion shall be effective, which shall be at least five (5) days after the date on which such notice is given (the "Conversion Effective Date"); provided, however, that if Borrower irrevocably pays and satisfies prior to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if Effective Date the Daily VWAP amount of the outstanding principal and interest to be converted pursuant to the notice, then Lender's right to convert such principal and interest into Common Stock exceeds or is equal shall terminate. Notwithstanding anything to the Threshold Price contrary in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon Section 2.07(a) above, if such notice of conversion is given after the occurrence and during the continuance of the Mandatory Conversion Eventan Event of Default, the Company such notice shall deliver notice to the Holders remain valid and such conversion shall remain effective if thereafter such Event of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (Default is not continuing. Promptly upon delivery of such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice Borrower shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice inform Lender of the Mandatory Conversion Eventaggregate percentage of Borrower's capital stock Lender will hold after such conversion.
(c) Interest Upon the Conversion Effective Date, the outstanding principal and interest under the Notes shall cease to accrue on any Notes on be deemed paid in the date of occurrence amount of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date portion of the provision Notes converted by Lender. After the Conversion Effective Date, Borrower shall, as soon as is practicable, issue and deliver to Lender at its principal office a certificate or certificates for the number of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant Shares to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received which Lender is entitled upon such conversion.
(fd) At Borrower shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock solely for the request purpose of effecting the conversion of the Notes such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of the Notes; and if at any Holdertime the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of the entire outstanding principal balance of and accrued interest on the Notes, in addition to such other remedies as shall be available to Lender, Borrower shall use its best efforts to take such corporate action as may, in the opinion of counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.
(e) Upon conversion of the Notes pursuant to this section, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not Conversion Shares shall be an “affiliate” included in the definition of the Company "Shares" for all purposes of the Securities Act and/or Stock Purchase Agreement dated as of the Exchange Act upon any Optional Conversion same date hereof, as amended, modified or supplemented from time to time, between Lender and Borrower.
(f) Any conversion of Notes pursuant to this Section 12.01(a) 2.07 shall be subject to compliance with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"), together with any other requirements for governmental consents. If any filing under the HSR Act is required in order to consummate such conversion, each of Borrower and Lender shall cooperate and work diligently to make such filing and obtain the termination or Mandatory expiration of the waiting period promptly. In the event of a delay in the conversion of the Notes by reason of the need to obtain governmental consents, the number of Conversion pursuant Shares to Section 12.01(bbe issued shall be the same as if the conversion had occurred on the originally specified Conversion Effective Date (i.e., without any change by reason of the delay in conversion or any subsequent change in the market value of the Conversion Shares).
Appears in 2 contracts
Sources: Loan Agreement (Cv Therapeutics Inc), Loan Agreement (Cv Therapeutics Inc)
Conversion. (a) At any time following Upon the receipt closing of the Required Stockholder Approval and Merger (as referred to in the effectiveness Note Agreement), all of Shockwave's indebtedness under this Note shall become convertible into equity securities of the Charter Amendmentsurviving corporation, Holders of the Notes shall have the right convert Shockwave (the “Optional Conversion”) their outstanding Notes"SERIES NEXT PREFERRED Stock"), at any time and from time to timeissued in Shockwave's next private equity financing (the "NEXT EQUITY FINANCING"), on any Business Day, provided the Next Equity Financing closes prior to the earliest Maturity Date of (1) if applicablethis Note. Upon the Next Equity Financing, with respect to a Borrower's indebtedness under this Note called for redemption, the close shall automatically be converted into that number of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional fully paid and nonassessable shares of Common Shockwave's Series Next Preferred Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence dollar amount of the Mandatory Conversion Event, the Company shall deliver notice to the Holders all principal outstanding and interest accrued as of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note conversion being converted pursuant into stock by Holder, divided by the price per share of Shockwave's Series Next Preferred Stock at which such Series Next Preferred Stock is or will be offered to an Optional other Series Next Preferred Stock investors (the "CONVERSION PRICE"); provided, however, that the Conversion Price will automatically, equitably and proportionally be adjusted to reflect any subdivision (stock split), combination (reverse stock split), stock dividend or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) other recapitalization affecting Shockwave's Series Next Preferred Stock. In the event that any Holder notified the Company Merger Agreement (1) as referred to in the case Note Agreement) is terminated according to its terms, all of an Optional Borrower's indebtedness under this Note shall automatically be converted into Borrower's Series D Preferred Stock based upon a fully diluted pre-money valuation of Borrower's equity of $75,000,000 (the "BORROWER CONVERSION PRICE"); provided, however, that the Conversion pursuant Price will automatically, equitably and proportionally be adjusted to Section 12.01(areflect any subdivision (stock split), at any time beginning combination (reverse stock split), stock dividend or other recapitalization affecting Borrower's Series D Preferred Stock. Such Series D Preferred Stock received by Holder will have rights, privileges, preferences and restrictions no less favorable than Borrower's Series C Preferred Stock in existence on the date of the provision Note Agreement and any Series D Preferred Stock issued subsequent to that date, and will have a liquidation preference based upon the price per share of the Optional Conversion Notice Series D Preferred Stock. Borrower covenants and ending agrees with Holder that Borrower will not in any way alter, amend or modify any of the effectiveness rights, preferences, privileges or restrictions of such Optional ConversionBorrower's Series D Preferred Stock, and (2) or to issue, eliminate or reduce the number of authorized shares of Borrower's Series D Preferred Stock. Upon the conversion of Borrower's outstanding indebtedness hereunder pursuant to this Section, Borrower, at its expense, will as soon as practicable cause to be issued in the case name of and delivered to Holder, a certificate or certificates for the number of fully paid and nonassessable shares of Borrower's Series D Preferred Stock to which Holder is entitled upon such conversion. Such certificates will include legends required federal and applicable state securities laws. No fractional shares will be issued upon any conversion of this Note or any part hereof. If, upon any conversion of this Note, a fraction of a Mandatory Conversion pursuant share would otherwise result, then Shockwave or Borrower, as the case may be, will pay Holder an amount of cash equal to Section 12.01(b), at any time beginning with the date fair market value of one share of the Mandatory Conversion Event type and ending 30 calendar days following the effectiveness class of capital stock issuable to Holder upon such conversion, that such Holder will beneficially own conversion (as determined in accordance with Section 13(d) the Conversion Price or Borrower Conversion Price, as the case may be, applicable at the time of 2 194 such conversion), multiplied by the Exchange Act and the rules and regulations promulgated thereunder) in excess fraction of 9.99% a share of the outstanding shares of Common Stock or stock to which Holder would otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionentitled.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Macromedia Inc), Agreement and Plan of Reorganization (Macromedia Inc)
Conversion. The shares of Series A Preferred Stock are not convertible into or exchangeable for any other property or securities of the Corporation, except as provided in this Section 9.
(a) At any time following Upon the receipt occurrence of a Change of Control involving the Required Stockholder Approval and the effectiveness issuance of the Charter Amendmentadditional shares of Common Stock or other Change of Control transaction, Holders in each case, approved by holders of the Notes Common Stock, each holder of shares of Series A Preferred Stock shall have the right convert (the “Optional Conversion”) their outstanding Notesright, at any time and from time to time, on any Business Dayunless, prior to the earliest Change of (1) if applicable, with respect to a Note called for redemptionControl Conversion Date, the close Corporation has provided or provides notice of business on its election to redeem the Business Day immediately preceding Series A Preferred Stock pursuant to the Redemption Date Right or (2) Special Optional Redemption Right, to convert some or all of the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate Series A Preferred Stock held by such holder (the “Change of Control Conversion RateRight”) on the Change of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Control Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes Date into a number of shares of Common Stock, per share of Series A Preferred Stock per $1,000 principal amount of Notes to be converted (the “Common Stock Conversion Consideration”) equal to the lesser of (A) the quotient obtained by dividing (i) the sum of (x) the $25,000 liquidation preference per share of Series A Preferred Stock to be converted plus (y) the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Rate then Date (unless the Change of Control Conversion Date is after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case no additional amount for such accrued and unpaid dividends will be included in such sum) by (ii) the Common Stock Price and (B) [●]8 (the “Share Cap”), subject to the immediately succeeding paragraph. The Share Cap is subject to pro rata adjustments for any share splits (including those effected pursuant to a distribution of the Common Stock), subdivisions or combinations (in each case, a “Share Split”) with respect to the Common Stock as follows: the adjusted Share Cap as the result of a Share Split shall be the number of shares of Common Stock that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to such Share Split by (plus cash ii) a fraction, the numerator of which is the number of shares of Common Stock outstanding after giving effect to such Share Split and the denominator of which is the number of shares of Common Stock outstanding immediately prior to such Share Split. In the case of a Change of Control pursuant to which shares of Common Stock shall be converted into cash, securities or other property or assets (including any combination thereof) (the “Alternative Form Consideration”), a holder of shares of Series A Preferred Stock shall receive upon conversion of such shares of Series A Preferred Stock the kind and amount of Alternative Form Consideration which such holder would have owned or been entitled to receive upon the Change of Control had such holder held a number of shares of Common Stock equal to the Common Stock Conversion Consideration immediately prior to the effective time of the Change of Control (the “Alternative Conversion Consideration”; and the Common Stock Conversion Consideration or the Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the “Conversion Consideration”). 8 In connection with the Merger, the Share Cap shall be determined and included at Closing equal to the number of shares issuable based on conversion at a Common Stock Price per share of Common Stock equal to 50% of the average of the closing sales prices per share of Common Stock for the ten consecutive trading days immediately preceding, but not including, the date immediately prior to the Effective Time (as defined in lieu the Merger Agreement). In the event that holders of fractional shares) if Common Stock have the Daily VWAP opportunity to elect the form of consideration to be received in the Change of Control, the Conversion Consideration will be deemed to be the kind and amount of consideration actually received by holders of a majority of the Common Stock exceeds that voted for such an election (if electing between two types of consideration) or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence holders of a plurality of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent Common Stock that voted for such an election (if other electing between more than the Trustee) (such noticetwo types of consideration), a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in as the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversionmay be, and (2) in the case of a Mandatory Conversion pursuant will be subject to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares limitations to which all holders of Common Stock or otherwise be deemed are subject, including, without limitation, pro rata reductions applicable to be an “affiliate” any portion of the Company for purposes consideration payable in the Change of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionControl.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Merger Agreement (Wesco International Inc), Merger Agreement (Wesco International Inc)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, 6.1 If at any time and from time to time, on any Business Day, prior to the earliest Maturity Date, the Prepayment Date, the Acceleration Date, and the Financing Date, the Payor or its parent shall merge with or become a subsidiary of (1) if applicablea publicly-traded company or the Payor or its parent shall become publicly traded, then this Note, together with respect to a Note called for redemption, accrued unpaid interest thereon outstanding at the close of business on the Business Day immediately preceding date of such event (a "Conversion Event") shall automatically convert into the Redemption Date Conversion Shares (as hereinafter defined) at the purchase price of one dollar per share of Common Stock of Payor, subject to adjustment in accordance with the anti-dilution provisions set forth in this Section 6.
6.2 At any time prior to the Maturity Date, and at any time prior to the Prepayment Date, the Acceleration Date, and the Financing Date, provided that Payor shall give Payee not less than five (5) days prior written notice of any such dates or the event triggering the Acceleration Date, the Prepayment Date, or the Financing Date, the Payee may, at its sole option, exercisable in writing to the Payor at its address set forth above, convert the principal amount of this Note, together with accrued unpaid interest thereon, outstanding (2the "Conversion Option") at the close of business on the Business Day immediately preceding date of such exercise (the Maturity "Effective Date") convert, in whole or in part, the then outstanding principal amount of this Note, together with accrued unpaid interest thereon (the "Optional Conversion"), into, fully paid and nonassessable shares of Common Stock (the "Conversion Shares") at the purchase price of one dollar per share of Common Stock of Payor, subject to adjustment in accordance with the anti-acceleration provisions set for in this Section 6.
6.3 To exercise the Conversion Option, the holder hereof shall give written notice to Payor that it elects to convert the principal amount of this Note, together with accrued unpaid interest thereon, into Conversion Shares in accordance with the provisions of Section 6.1 above (the "Conversion Notice"). The Conversion Notice shall specify the name or names in which the holder wishes the certificates for the Conversion Shares to be registered, together with the address or addresses of the persons so named, provided such Conversion Shares may not be registered in the name of a person or persons other than the holder of this Note unless the holder and such other person first comply with all applicable restrictions on the transfer of Conversion Shares.
6.4 Promptly after the delivery of the Conversion Notice to Payor, Payor shall cause to be delivered to the holder and/or Payor's designees' certificates representing the number of Conversion Shares into which this Note is being converted rounded up to the nearest whole share in the case of any fractional share. Conversion of this Note shall be deemed to have been made at the close of business on the date the Conversion Notice is delivered to Payor or a Conversion Event occurs, so that interest shall not accrue from and after such date on the principal amount of this Note converted and the person or persons entitled to receive Conversion Shares upon such conversion shall be treated for all purposes as having been the record holder or holders thereof at such time and such conversion shall be at the Conversion Rate in effect at such time. The issuance of certificates for Conversion Shares upon conversion of this Note shall be made without charge to the holder of this Note for any tax in respect of the issuance of such certificates. Upon Payor's (i) delivery of the certificates for the Conversion Shares to the holder of this Note and/or its designees and (ii) payment of the cash adjustment, if any, due to the holder of this Note pursuant to the terms of this Article 6, the holder of this Note shall surrender this Note to Payor.
6.5 Payor shall at all times keep available out of its authorized but unissued shares of Common Stock, at a solely for effecting the conversion rate (of this Note, the “full number of whole Conversion Rate”) Shares then deliverable upon conversion of 81.2 shares per $1,000 the entire principal amount of this Note, and accrued unpaid interest thereon, at the Notes (plus cash time outstanding. Payor shall take at all times such corporate action as shall be necessary in lieu of fractional order that Payor may validly and legally issue fully paid and nonassessable shares of Common Stock in accordance with Section 12.03); provided the provisions of this Article 6.
6.6 In the event Payor at any time or from time to time shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or distribution payable in securities of Payor other than Common Stock, then, and in each such event, provisions shall be made so that any Holder the holder of Notes who this Note shall receive upon conversion thereof, in addition to the number of Conversion Shares receivable thereupon, the amount of securities of Payor which such holder would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding have received had this Note been converted into shares of Common Stock on the date of such event and had the holder retained such securities thereafter, during the period from the date of such event to and including the conversion date, giving effect to all adjustments to the Conversion Rate during such period with respect to the rights of the holder of this Note.
6.7 If the shares of Common Stock issuable upon the conversion of such Holder’s Notes this Note shall be required changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise, then and in each such event the holder of this Note shall have the right thereafter to provide 61 days’ written notice to convert this Note into the Company prior to any kind and amount of shares of stock and other securities and property receivable upon such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt reorganization, reclassification or other change, by holders of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal into which this Note might have been converted immediately prior to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds such reorganization, reclassification or is equal change, all subject to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventfurther adjustment as provided herein.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) 6.8 In the event that any Holder notified the Company of:
(1) in the case any taking by Payor of an Optional Conversion pursuant to Section 12.01(a), at a record of any time beginning on the date of the provision holders of any class of securities for any purpose, including, but not limited to, determining the Optional Conversion Notice and ending with the effectiveness holders who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of such Optional Conversionstock of any class or any other securities or property, and or to receive any other right; or
(2) any meeting of holders of any class of securities of Payor or any action by holders of any class of securities of Payor without a meeting; or
(3) any capital reorganization of Payor, any reclassification of recapitalization of the capital stock of Payor or any transfer of all or substantially all of the assets of Payor to or consolidation or merger of Payor with or into any other person; or
(4) any proposed issue or grant by Payor to the holders of Common Stock of any shares of stock of any class or any other securities (including but not limited to convertible securities), or any right or option to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities;
(5) any proposed sale of Common Stock in the case manner described in Section 6.8, then and in such event, Payor will mail or cause to be mailed to the holder of record of this Note a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with notice specifying (i) the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of on which any such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act record is or was to be taken and the rules purpose therefor, (ii) the date and regulations promulgated thereunderpurpose of any shareholders meeting or proposed shareholders action without meeting, (iii) in excess the date on which any such sale, reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of 9.99% which the holders of the outstanding record of Common Stock are to surrender or exchange such shares of Common Stock for securities or otherwise be deemed other property deliverable on such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up and (iv) the amount and character of any stock or other securities, or rights or options with respect thereto, proposed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holderissued or granted, the Company will use its reasonable efforts date of such proposed issue or grant and the persons or class of persons to cooperate with whom such Holder proposed issue or grant is to confirm with brokers that such Holder will not be an “affiliate” of offered or made. Such notice shall be mailed at least fifteen (15) days prior to the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(arecord date, shareholders meeting (or shareholders action without meeting) or Mandatory Conversion pursuant to other event specified in this Section 12.01(b).6.8
Appears in 2 contracts
Sources: Senior Convertible Secured Promissory Note (Hunapu Inc), Senior Convertible Secured Promissory Note (Hunapu Inc)
Conversion. (a) At any time following the receipt Each Holder of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Preferred Stock shall have the right convert (the “Optional Conversion”) their outstanding Notesat any time, at any time and from time its option, to timeconvert, on any Business Day, prior subject to the earliest terms and provisions of (1) if applicablethis Section 8 and subject to the limitations set forth in Section 11, with respect to a Note called for redemption, the close any or all of business on the Business Day immediately preceding the Redemption Date or (2) the close such Holder’s shares of business on the Business Day immediately preceding the Maturity Date, Preferred Stock into Common Stock, Stock at a conversion rate equal to the quotient of (i) the Liquidation Preference; divided by (ii) the Base Conversion Price (subject to adjustment as provided in this Section 8, the “Conversion Rate”) per share of 81.2 shares per $1,000 principal amount Preferred Stock. Notwithstanding the foregoing, but subject to the Conversion Cap, each Holder of Preferred Stock shall have the right (the “Seven-Year Holder Conversion Right”) at any time after the seven-year anniversary of the Notes Issue Date, if the then-current Conversion Price exceeds the Weighted Average Price for the Common Stock during any 10 consecutive Trading Days, at its option by delivery of a Notice of Conversion in accordance with Section 8(b) below no later than 5 Business Days following such 10th consecutive Trading Day, to convert any or all of such Holder’s shares of Preferred Stock into, at the Corporation’s sole discretion, either Common Stock, cash or a combination of Common Stock and cash; provided, that the Corporation shall provide such converting Holder notice of its election within 2 Trading Days of receipt of the Notice of Conversion; provided further, that in the event the Corporation elects to issue Common Stock for all or a portion of such conversion, the “Conversion Rate” for such conversion (plus subject to the limitations set forth in Section 11) shall mean the quotient of the Liquidation Preference divided by the average Weighted Average Price for the Common Stock during the 20 consecutive Trading Days commencing on the Trading Day immediately following the Trading Day on which the Corporation provided such notice. If the Corporation does not elect a settlement method prior to the deadline set forth, the Corporation shall be deemed to have elected to settle the conversion entirely in Common Stock. Notwithstanding anything to the contrary herein, prior to the receipt of Shareholder Approval, shares of Preferred Stock shall not be converted pursuant to this Section 8 in the aggregate into more than 19.99% of the shares of Common Stock outstanding on the Issue Date (subject to appropriate adjustment in the event of a stock split, stock dividend, combination or other similar recapitalization) (such limitation, the “Conversion Cap”). Upon conversion of any share of Preferred Stock, the Corporation shall deliver to the converting Holder, in respect of each share of Preferred Stock being converted, a number of shares of Common Stock equal to the Conversion Rate, together with a cash payment in lieu of any fractional shares share of Common Stock in accordance with Section 12.03)10, on the second Business Day immediately following the relevant Conversion Date; provided, that upon any Holder’s election to convert any share or shares of Preferred Stock pursuant to the second sentence of this Section 8(a) the Corporation shall have the option to deliver the applicable conversion value (or any portion thereof) in cash in lieu of shares of Common Stock, after providing such Holder at least 2 Business Days’ prior written notice of its election pursuant to this proviso; provided further, that any Holder such payment in cash in lieu of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock shall be made in an amount equal to the Liquidation Preference for every whole share of Preferred Stock so converted; provided further, that if the conversion value consists (x) solely of cash, then the Corporation shall deliver such cash payment to the Holder no later than 2 Trading Days from the receipt of the Notice of Conversion or (y) partially of cash, then the Corporation shall deliver such cash payment to the Holder simultaneously with the delivery of the Common Stock included in the conversion value.
(b) Before any Holder shall be entitled to convert a share of Preferred Stock as set forth above, such Holder who:
(i) holds a beneficial interest in a Global Preferred Share must deliver to DTC the appropriate instruction form for conversion pursuant to DTC’s conversion program (a “Conversion Instruction”) and, if required, pay all transfer or similar taxes or duties, if any; or
(ii) holds Preferred Stock in definitive, certificated form must:
(A) manually sign and deliver an irrevocable notice to the office of the Conversion Agent as set forth in the Form of Certificated Notice of Conversion (or a facsimile thereof) in the form included in Exhibit A hereto (a “Certificated Notice of Conversion”) and state in writing therein the number of shares of Preferred Stock 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, if any, to be delivered and registered;
(B) surrender such shares of Preferred Stock, at the office of the Conversion Agent;
(C) if required, furnish appropriate endorsements and transfer documents; and
(D) if required, pay all transfer or similar taxes or duties, if any. The Conversion Agent shall notify the Corporation of any pending conversion pursuant to this Section 8 on the Conversion Date for such conversion. The date on which a Holder complies with the procedures in this clause (b) is the “Conversion Date.” If more than one share of Preferred Stock shall be surrendered for conversion at one time by the same Holder, the number of shares of Common Stock to be delivered upon conversion of such shares of Preferred Stock shall be computed on the basis of the aggregate number of shares of Preferred Stock so surrendered.
(c) With respect to any conversion of shares of Preferred Stock:
(i) if there shall have been surrendered certificate or certificates, as the case may be, representing a greater number of shares of Preferred Stock than the number of shares of Preferred Stock to be converted, the Corporation shall execute and the Registrar shall countersign and deliver to such Holder or such Holder’s designee, at the expense of the Corporation, a new certificate or certificates, as the case may be, representing the number of shares of Preferred Stock that shall not have been converted; and
(ii) if the shares of Preferred Stock converted are held in book-entry form through the facilities of the Depositary, promptly following the relevant Conversion Date, the Corporation shall cause the Transfer Agent and Registrar to reduce the number of shares of Preferred Stock represented by the global certificate by making a notation on Schedule I attached to the relevant Global Preferred Share.
(d) Immediately prior to the close of business on the Conversion Date with respect to a conversion, a converting Holder of Preferred Stock shall be deemed to be the holder of record of the Common Stock issuable upon conversion of such Holder’s Notes Preferred Stock notwithstanding that the share register of the Corporation shall then be required closed or that certificates representing such Common Stock, if any, shall not then be actually delivered to provide 61 days’ written notice such Holder. On the date of any conversion, all rights with respect to the Company prior shares of Preferred Stock so converted, including the rights, if any, to receive notices, shall terminate, excepting only the rights of holders thereof (i) pursuant to Section 3(f) and (ii) to (A) receive certificates for the number of whole shares of Common Stock, if any, into which such shares of Preferred Stock have been converted (with a cash payment in lieu of any such conversion. fractional share of Common Stock in accordance with Section 10) and (B) exercise the rights to which they are thereafter entitled as holders of Common Stock, if any.
(e) The Conversion Rate shall be adjusted, without duplication, upon the occurrence of any of the following events:
(i) If the Corporation exclusively issues shares of Common Stock as a dividend or distribution on all shares of its Common Stock, or if the Corporation effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as the case may be; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date of such share split or share combination, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as the case may be; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend or distribution, or such share split or share combination, as the case may be. Any adjustment made under this Section 8(e)(i) shall become effective immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as the case may be. If any dividend or distribution of the type described in this Section 8(e)(i) is subject declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) If the Corporation distributes to all or substantially all holders of its Common Stock any rights, options or warrants entitling them, for a period expiring not more than 60 days immediately following the announcement date of such distribution, to purchase or subscribe for shares of its Common Stock at a price per share that is less than the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date of such distribution, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution; OS 0 = the number of shares of Common Stock outstanding immediately prior to the close of business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date of such distribution. Any increase made under this Section 8(e)(ii) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the close of business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted, effective as of the date of such expiration, to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be decreased, effective as of the date the Board determines not to make such distribution, to be the Conversion Rate that would then be in effect if such Record Date for such distribution had not occurred. If such rights, options or warrants are only exercisable upon the occurrence of certain triggering events, then the Conversion Rate shall not be adjusted until the triggering events occur. For purposes of this Section 8(e)(ii) in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date of such distribution, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board.
(iii) If the Corporation distributes shares of its Capital Stock, evidences of its indebtedness or other assets, securities or property of the Corporation or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Common Stock, excluding (a) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 12.06.
8(e)(i) or Section 8(e)(ii), (b) Following dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to (or a cash amount paid pursuant to the receipt last paragraph of) Section 8(e)(iv) and (c) Spin-Offs as to which the provisions set forth below in this Section 8(e)(iii) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets, securities or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution; SP0 = the average of the Required Stockholder Approval and the effectiveness Closing Sale Prices of the Charter AmendmentCommon Stock over the 10 consecutive Trading Day period ending on, and including, the Company Trading Day immediately preceding the Ex-Date for such distribution; and FMV = the fair market value as of the Record Date for such distribution (as determined by the Board) of the Distributed Property with respect to each outstanding share of the Common Stock. Any increase made under the portion of this Section 8(e)(iii) above shall convert become effective immediately after the close of business on the Record Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased, effective as of the date the Board determines not to pay the distribution, to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing (but subject to the limitations set forth in Section 11), if “Mandatory Conversion”FMV” (as defined above) any outstanding Notes into is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of Preferred Stock shall receive, for each share of Preferred Stock, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of Distributed Property that such Holder would have received as if such Holder owned a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then (determined without regard to the Conversion Cap, Beneficial Ownership Limitation or the Permitted Percentage Limitation) in effect (plus cash in lieu on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 8(e)(iii) where there has been a payment of fractional shares) if the Daily VWAP of a dividend or other distribution on the Common Stock exceeds consisting solely of shares of Capital Stock of any class or is equal series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Threshold Price in effect Corporation where such Capital Stock or similar equity interest is, or will be when issued, listed or admitted for trading on each applicable Trading Day for at least 15 consecutive Trading Days a U.S. national securities exchange (the a “Mandatory Conversion EventSpin-Off”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business Rate will be increased based on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).formula: w
Appears in 2 contracts
Sources: Backstop and Subscription Agreement, Backstop and Subscription Agreement (Hennessy Capital Acquisition Corp. III)
Conversion. (a) At Each Note may be converted at any time following time, in whole or in part, at the receipt option of the Required Stockholder Approval holder thereof, in the manner hereinafter provided, into fully-paid and nonassessable shares of Common Stock. The Notes shall automatically be converted into shares of Common Stock at the effectiveness then effective Conversion Price for such shares with the consent of the Charter Amendment, Holders of Majority Holders.
(b) The initial conversion rate for the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest be 100 shares of (1) if applicable, with respect to a Note called Common Stock for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per each $1,000 in aggregate principal amount of the Notes representing an initial Conversion Price (plus cash in lieu for purposes of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d10) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% $10.00 per share of the outstanding Common Stock. The applicable conversion rate and Conversion Price from time to time in effect is subject to adjustment as hereinafter provided.
(c) The Company shall not issue fractions of shares of Common Stock upon conversion of such Holder’s the Notes shall or scrip in lieu thereof. If any fraction of a share of Common Stock would, except for the provisions of this Section 9(c), be required to provide 61 days’ written notice to issuable upon conversion of either Note or the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentNotes, the Company shall convert (in lieu thereof pay to the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal person entitled thereto an amount of Notes in cash equal to the Conversion Rate then in effect (plus cash in lieu Market Price of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal such fraction, calculated to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days nearest one-hundredth (the “Mandatory Conversion Event”). Upon the occurrence 1/100) of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being convertedshare.
(d) If a Holder exercises its right to require Whenever the conversion rate and Conversion Price shall be adjusted as provided in Section 10 hereof, the Company shall forthwith file at each office designated for the conversion of the Notes, a statement, signed by the Chairman of the Board, the President, any Vice President or Treasurer of the Company, showing in reasonable detail the facts requiring such adjustment and the conversion rate that will be effective after such adjustment. The Company shall also cause a notice setting forth any such adjustments to repurchase its Notes pursuant be sent by mail, first class, postage prepaid, to a Prepayment Offer or a Change the holders of Control Offer the Notes. If such notice relates to an adjustment resulting from an event referred to in accordance with Section 4.10 or Section 4.15, respectivelyparagraph 10(g), such Holder may convert its Notes into Common Stock only if it withdraws its election notice shall be included as part of the notice required to have its Notes repurchased in connection with such Prepayment Offer or Change be mailed and published under the provisions of Control Offerparagraph 10(g) hereof.
(e) In order to exercise the event that any Holder notified conversion right, each holder of a Note shall surrender its Note therefore to the Company at its principal office, and shall give written notice to the Company at such office that such holder elects to convert its Note. Such notice shall also state the name or names (1with address) in which the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding certificate or certificates for shares of Common Stock which shall be issuable on such conversion shall be issued, subject to any restrictions on transfer relating to such Note or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon conversion thereof. If so required by the Company, the Note or Notes surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form reasonably satisfactory to the Company, duly authorized in writing. The date of receipt by the Company of the certificates and notice shall be the conversion date. As soon as practicable after receipt of such notice and the surrender of the as aforesaid, the Company shall cause to be issued and delivered at such office to such holder, or on his or its written order, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and cash as provided in Section 9(c) in respect of any fraction of a share of Common Stock otherwise issuable upon such conversion.
(f) At Upon any conversion of all or any part of the request Notes hereunder, the holders of the Notes shall be entitled to receive, at the election of the Company, cash in respect of any Holderaccrued but unpaid interest or additional shares of Common Stock equal to the amount of accrued but unpaid interest as of the date of conversion, divided by the Conversion Price then in effect.
(g) In the event of a partial conversion of either Note or the Notes, the Company, at its expense, will forthwith issue to the holder or holders thereof a new Note or Notes of like tenor representing the portion of the Note or Notes that have not been converted, such Note or Notes to be issued in the name of the holder thereof or its nominee (upon payment by such holder of any applicable transfer taxes).
(h) The Company shall at all times when the Notes shall be outstanding reserve and keep available out of its authorized but unissued stock, for the purposes of effecting the conversion of the Notes, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of the Notes. Before taking any action which would cause an adjustment reducing the conversion price below the then par value of the shares of Common Stock issuable upon conversion of the Notes, the Company will use take any corporate action which may, in the opinion of its reasonable efforts to cooperate with such Holder to confirm with brokers counsel, be necessary in order that such Holder will not be an “affiliate” of the Company for purposes may validly and legally issue fully-paid and nonassessable shares of the Securities Act and/or the Exchange Act upon any Optional such Common Stock at such adjusted Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Price.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Coventry Corp), Securities Purchase Agreement (Coventry Corp)
Conversion. (a) At any time following Subject to the receipt terms and conditions of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding NotesIndenture, at any time or times after the Issue Date, a Holder of a Security may convert the Principal Amount of such Security (or any portion thereof) into shares of the Company's common stock at the Conversion Price. The Conversion Price in effect at any given time is subject to adjustment. A Holder may convert fewer than all of such Holder's Securities so long as the Securities converted are an integral multiple of $1,000 Principal Amount. Holders converting any Securities or portions thereof shall be entitled to receive any accrued and from time to time, unpaid interest on any Business Day, prior the Principal Amount being converted as of the Conversion Date to the earliest of (1) if applicable, with respect to a Note called extent provided for redemption, in the Indenture. If the Conversion Date occurs between the close of business on the Business Day Record Date and the opening of business on the immediately preceding following Interest Payment Date, the Redemption Company shall pay to the applicable Holder in cash, on such Interest Payment Date, an amount equal to the accrued and unpaid interest through the Conversion Date on the Principal Amount of Securities such Holder is converting; provided, however, if the Company pays such Holder on such Interest Payment Date an amount equal to the interest otherwise payable to such Holder as if such Holder had not converted any Security or portion thereof prior to such Interest Payment Date, such Holder shall promptly pay to the Company an amount equal to the difference between (1) such interest payment received and (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of accrued and unpaid interest through the Notes (plus cash Conversion Date for the Principal Amount converted by such Holder. [INCLUDE IF SECURITY IS A GLOBAL SECURITY -- In the event of a deposit or withdrawal of an interest in lieu this Security, including an exchange, transfer, repurchase or conversion of fractional shares this Security in part only, the Trustee, as custodian of Common Stock the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and procedures of the Depositary.] [INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- Subject to certain limitations in the Indenture, at any time when the Company is not subject to Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d13 or 15(d) of the United States Securities Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment1934, the Company shall convert as amended (the “Mandatory Conversion”) "EXCHANGE ACT"), upon the request of a Holder or any outstanding Notes into beneficial owner of a number Restricted Security or holder or beneficial owner of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventissued upon conversion thereof, the Company shall deliver notice will promptly furnish or cause to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own furnished Rule 144A Information (as determined in accordance with Section 13(ddefined below) of and any reports required to be filed by them under the Exchange Act and the rules and regulations promulgated thereunderor Securities Act (as defined below) in excess to such Holder or any beneficial owner of 9.99% Restricted Securities, or holder or beneficial owner of the outstanding shares of Common Stock issued upon conversion thereof, or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request prospective purchaser of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).such
Appears in 2 contracts
Sources: Indenture (Vector Group LTD), Indenture (Vector Group LTD)
Conversion. (a) At any time following The mode of carrying the receipt of the Required Stockholder Approval Merger into effect and the effectiveness manner and basis of converting the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding S▇▇▇▇▇ into shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionNew Millennium are as follows:
9.1. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a aggregate number of shares of S▇▇▇▇▇ Common Stock per $1,000 principal amount of Notes equal to issued and outstanding on the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP Merger Date shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into an aggregate of 500,000 shares of New Millennium Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day adjusted by any increase for at least 15 consecutive Trading Days fractional shares and reduced by any Dissenting Shares (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”defined below). The accrued and unpaid interest on any Note being converted New Millennium Common Stock to be issued hereunder ("the New Millennium Shares") will be issued pursuant to an Optional Conversion or Mandatory Conversion Rule 506 of the General Rules and Regulations of the Securities and Exchange Commission, will be restricted as to transferability pursuant to Rule 144 thereof, and will bear substantially the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
9.2. Upon completion of the Merger, there shall be added 24,500,000 shares of New Millennium Common Stock issued and outstanding, subject to such adjustments, held as follows: 500,000 common shares held by G▇▇▇▇▇ ▇▇▇▇▇ and 24,000,000 common shares held by the other shareholders of New Millennium. The management of New Millennium will not consolidate, reverse split or rollback the common shares of New Millennium during the one-year period in which G▇▇▇▇▇ ▇▇▇▇▇ is restricted from selling the 500,000 shares of New Millennium stock. Such dilution would have an adverse effect on the amount and value of shares issued to G▇▇▇▇▇ ▇▇▇▇▇ by New Millennium.
9.3. All outstanding Common or Preferred Stock of S▇▇▇▇▇ and all warrants, options or other rights to its Common or Preferred Stock shall be retired and canceled as of the Merger Date.
9.4. Each share of S▇▇▇▇▇ Common Stock that is owned by S▇▇▇▇▇ as treasury stock shall, by virtue of the Merger and without any action on the part of S▇▇▇▇▇, be retired and canceled as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of New Millennium Common Stock issued and outstanding on the Merger Date or held by New Millennium in its treasury shall continue to evidence ownership of the same number of shares of New Millennium Common Stock.
9.6. New Millennium Common Stock shall be issued to the principal amount holders of such Note being converted.
(d) If S▇▇▇▇▇ Common Stock in exchange for their shares on a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer prorata bases in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into each holder's relative ownership of the S▇▇▇▇▇ Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offerthat is being exchanged.
9.7. The shares of New Millennium Common Stock to be issued in exchange for S▇▇▇▇▇ Common Stock hereunder shall be proportionately reduced by any shares owned by S▇▇▇▇▇ shareholders who shall have timely objected to the Merger (ethe" Dissenting Shares") In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) the provisions of the Exchange Act and the rules and regulations promulgated thereunder) in excess General Corporation Law of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversionDelaware, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionas provided therein.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Merger Agreement (New Millennium Media International Inc), Merger Agreement (Scovel Management Inc)
Conversion. Each of the Parties agrees that, in the absence of any Event of Default (a) At any time or following the receipt waiver of the Required Stockholder Approval any Event of Default by Investor) and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, the First Principal Amount will automatically convert upon the consummation of Business Combination into Common Stockthe First CM Seven Star Unit Amount. Within five (5) Business Days of such consummation, at CM Seven Star shall issue to the Investor the First CM Seven Star Unit Amount, as adjusted for any share split, share dividend, share combination or consolidation, recapitalization, reclassification or other similar event in relation to the share capital of CM Seven Star. Each of the Parties agrees that, in the absence of any Event of Default (or following the waiver of any Event of Default by Investor), if the Second Principal Amount is funded to Kaixin following the completion of the Business Combination, the Second Principal Amount will automatically convert into the Second CM Seven Star Unit Amount. Within five (5) Business Days of the deposit of the Second Principal Amount with Kaixin, CM Seven Star shall issue to the Investor the Second CM Seven Star Unit Amount, as adjusted for any share split, share dividend, share combination or consolidation, recapitalization, reclassification or other similar event in relation to the share capital of CM Seven Star. For the avoidance of doubt, after any conversion pursuant to this Clause 4, all right and title to the amount deposited with Kaixin under the Convertible Loan shall become that of Kaixin as consideration for the CM Seven Star Units. Upon the completion of the Business Combination, CM Seven Star shall enter into a conversion rate customary Registration Rights Agreement (the “Conversion RateRegistration Rights Agreement”) of 81.2 shares per $1,000 principal amount of with the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of Investor, pursuant to which CM Seven Star will grant to Investor the Exchange Act right, subject to the terms and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion conditions of such Holder’s Notes Registration Rights Agreement, to cause CM Seven Star to prepare and file with the Commission a registration statement with respect to the CM Seven Star Shares underlying the CM Seven Star Units and use its reasonable best efforts to cause such registration statement to become effective. CM Seven Star further confirms that, in connection with a demand registration pursuant to such Registration Rights Agreement, all reasonable fees, costs and expenses of and incidental to such registration, inclusion and public offering in connection therewith shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendmentborne by CM Seven Star, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventapplicable underwriting discounts and commissions and transfer taxes.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Convertible Loan Agreement (CM Seven Star Acquisition Corp), Convertible Loan Agreement (Renren Inc.)
Conversion. (a) At any time following Subject to and upon compliance with the receipt provisions of Article VII of the Required Stockholder Approval and Third Supplemental Indenture, the effectiveness Debentures are convertible, at the option of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding NotesHolder, at any time on and from time to after the occurrence of any of the events described in paragraph (b) below, and before 5:00 pm, New York, New York time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date date of repayment of such Debentures, whether at Stated Maturity or upon redemption, into fully paid and nonassessable shares of Common Stock at an initial Conversion Ratio of 1.2248 shares of Common Stock for each $50 in aggregate principal amount of Debentures, subject to adjustment as described in such Article VII. A Holder may convert any portion of the principal amount of such Holder’s Debentures into (2x) a cash amount equal to the lesser of (i) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 aggregate principal amount of the Notes Debentures to be converted or (plus cash in lieu ii) the Applicable Stock Price multiplied by the Conversion Ratio (multiplied by the aggregate principal amount of fractional Debentures to be converted divided by 50) and (y) if the product of the Applicable Stock Price and the Conversion Ratio (multiplied by the aggregate principal amount of Debentures to be converted divided by 50) exceeds the aggregate principal amount of Debentures to be converted, that number of fully paid and nonassessable shares of Common Stock (calculated as to each conversion to the nearest 1/100th of a share) equal to (i) the aggregate principal amount of Debentures to be converted divided by $50 and multiplied by (ii) (A) the Conversion Ratio minus (B) $50 divided by the Applicable Stock Price. Settlement in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding cash and, if applicable, shares of Common Stock upon conversion will occur on the second Trading Day following the final trading day of such the Cash Settlement Averaging Period. Such day will be the 22nd Trading Day following the Property Trustee’s receipt of a Holder’s Notes shall conversion notice submitted by the holder of Trust PIERS (assuming such holder has satisfied all conversion requirements, including the valid delivery of the conversion notice), unless (i) the conversion is in connection with a redemption, in which case the settlement day will be required to provide 61 days’ written the redemption date or (ii) such holder of Trust PIERS submits a conversion notice to during the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06period beginning 25 Trading Days preceding the maturity date and ending one Trading Day preceding the maturity date, in which case the settlement day will be the maturity date.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall A Holder’s right to convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon its Debentures will arise only upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders any of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).following:
Appears in 2 contracts
Sources: Third Supplemental Indenture (Omnicare Inc), Third Supplemental Indenture (Omnicare Capital Trust Ii)
Conversion. (a) At any time following Subject to and upon compliance with the receipt provisions of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionIndenture, the close Holder may surrender for conversion all or any portion of business on this Security that is in an integral multiple of $1,000(4). Upon conversion, the Business Day immediately preceding Holder shall be entitled to receive the Redemption Date or (2) consideration specified in the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of Indenture. No fractional shares share of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock shall be issued upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversiona Security. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentInstead, the Company shall convert pay a cash adjustment as provided in the Indenture. The initial Conversion Rate of the Securities shall be (the “Mandatory Conversion”x) any outstanding Notes into a number of 500 shares of Common Stock per $1,000 principal amount of Notes equal Securities (for Securities denominated in $1,000 increments) and (y) 0.5 shares of Common Stock per $1.00 principal amount of Securities (for Securities denominated in $1.00 increments), subject to adjustment in accordance with the provisions of Article 4 of the Indenture. If a Holder converts all or any portion of this Security in connection with the occurrence of certain Fundamental Change transactions, the Conversion Rate then shall be increased in effect (plus cash the manner and to the extent described in lieu of fractional shares) if the Daily VWAP Section 4.06 of the Common Stock exceeds Indenture. Securities surrendered for conversion (in whole or is equal in part) during the period from the close of business on any Regular Record Date to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open opening of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) next succeeding Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion Payment Date shall be added accompanied by payment by the Holders of such Securities in funds to the principal amount of such Note being converted.
(d) If a Holder exercises its right Conversion Agent acceptable to require the Company of an amount equal to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, the interest payable on such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with corresponding Interest Payment Date; provided that no such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company payment need be made: (1) in connection with a conversion following the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on Regular Record Date preceding the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and Final Maturity Date; (2) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (3) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Security. A Security in the case respect of which a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that Holder has submitted a Fundamental Change Purchase Notice may be converted only if such Holder will beneficially own (as determined validly withdraws such Fundamental Change Purchase Notice in accordance with Section 13(d) the terms of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Indenture (Emergent Capital, Inc.), Indenture (Emergent Capital, Inc.)
Conversion. (a) At any time following Upon the receipt closing of the Required Stockholder Approval and Merger (as referred to in the effectiveness Note Agreement), all of Shockwave's indebtedness under this Note shall become convertible into equity securities of the Charter Amendmentsurviving corporation, Holders of the Notes shall have the right convert Shockwave (the “Optional Conversion”) their outstanding Notes"SERIES NEXT PREFERRED STOCK"), at any time and from time to timeissued in Shockwave's next private equity financing (the "NEXT EQUITY FINANCING"), on any Business Day, provided the Next Equity Financing closes prior to the earliest Maturity Date of (1) if applicablethis Note. Upon the Next Equity Financing, with respect to a Borrower's indebtedness under this Note called for redemption, the close shall automatically be converted into that number of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional fully paid and nonassessable shares of Common Shockwave's Series Next Preferred Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence dollar amount of the Mandatory Conversion Event, the Company shall deliver notice to the Holders all principal outstanding and interest accrued as of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note conversion being converted pursuant into stock by Holder, divided by the price per share of Shockwave's Series Next Preferred Stock at which such Series Next Preferred Stock is or will be offered to an Optional other Series Next Preferred Stock investors (the "CONVERSION PRICE"); provided, however, that the Conversion Price will automatically, equitably and proportionally be adjusted to reflect any subdivision (stock split), combination (reverse stock split), stock dividend or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) other recapitalization affecting Shockwave's Series Next Preferred Stock. In the event that any Holder notified the Company Merger Agreement (1) as referred to in the case Note Agreement) is terminated according to its terms, all of an Optional Borrower's indebtedness under this Note shall automatically be converted into Borrower's Series D Preferred Stock based upon a fully diluted pre-money valuation of Borrower's equity of $75,000,000 (the "BORROWER CONVERSION PRICE"); provided, however, that the Conversion pursuant Price will automatically, equitably and proportionally be adjusted to Section 12.01(areflect any subdivision (stock split), at any time beginning combination (reverse stock split), stock dividend or other recapitalization affecting Borrower's Series D Preferred Stock. Such Series D Preferred Stock received by Holder will have rights, privileges, preferences and restrictions no less favorable than Borrower's Series C Preferred Stock in existence on the date of the provision Note Agreement and any Series D Preferred Stock issued subsequent to that date, and will have a liquidation preference based upon the price per share of the Optional Conversion Notice Series D Preferred Stock. Borrower covenants and ending agrees with Holder that Borrower will not in any way alter, amend or modify any of the effectiveness rights, preferences, privileges or restrictions of such Optional ConversionBorrower's Series D Preferred Stock, and (2) or to issue, eliminate or reduce the number of authorized shares of Borrower's Series D Preferred Stock. Upon the conversion of Borrower's outstanding indebtedness hereunder pursuant to this Section, Borrower, at its expense, will as soon as practicable cause to be issued in the case name of and delivered to Holder, a certificate or certificates for the number of fully paid and nonassessable shares of Borrower's Series D Preferred Stock to which Holder is entitled upon such conversion. Such certificates will include legends required federal and applicable state securities laws. No fractional shares will be issued upon any conversion of this Note or any part hereof. If, upon any conversion of this Note, a fraction of a Mandatory Conversion pursuant share would otherwise result, then Shockwave or Borrower, as the case may be, will pay Holder an amount of cash equal to Section 12.01(b), at any time beginning with the date fair market value of one share of the Mandatory Conversion Event type and ending 30 calendar days following the effectiveness class of capital stock issuable to Holder upon such conversion, that such Holder will beneficially own conversion (as determined in accordance with Section 13(d) the Conversion Price or Borrower Conversion Price, as the case may be, applicable at the time of such conversion), multiplied by the Exchange Act and the rules and regulations promulgated thereunder) in excess fraction of 9.99% a share of the outstanding shares of Common Stock or stock to which Holder would otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionentitled.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Macromedia Inc), Agreement and Plan of Reorganization (Macromedia Inc)
Conversion. Subject to the provisions of the Indenture, unless ---------- previously redeemed, the Notes are convertible (a) At in denominations of $1,000 principal amount at maturity or integral multiples thereof), at the option of the holder thereof, into Capital Stock of the Company at any time after 365 days following the receipt Issue Date and prior to the maturity date. The number of shares of Capital Stock of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders Company ("Conversion Shares") issuable upon conversion of the Notes shall have is equal to the right convert Accreted Value of the Notes being converted (on the date of conversion) divided by $25.00, subject to adjustment as provided in the Indenture (the “Optional Conversion”"Conversion Ratio"). Except as described below, no adjustment will be made on conversion of any Notes for interest accrued thereon or for dividends paid on outstanding Capital Stock of the Company. If Notes not called for redemption are converted (including pursuant to the mandatory conversion feature described below) their outstanding Notes, at any time after a record date for the payment of interest and from time to time, on any Business Day, prior to the earliest next succeeding interest payment date, such Notes must be accompanied by funds equal to the interest payable on such succeeding interest payment date on the principal amount so converted. The Company is not required to issue fractional shares upon conversion of Notes (1including pursuant to the mandatory conversion feature described below) if applicableand, with respect in lieu thereof, will pay a cash adjustment based upon the Closing Price on the Neuer Markt of the Common Stock on the last Trading Day prior to a Note the day of conversion. In the case of Notes called for redemption, conversion rights will expire at the close of business on the Business Trading Day immediately next preceding the Redemption Date or (2) date fixed for redemption, unless the close Company defaults in payment of business the redemption price. In addition, if the closing price on the Business Day immediately preceding Neuer Markt of the Maturity DateCommon Stock during any period described below has exceeded the price for such period referred to below for at least 30 consecutive Trading Days ("Market Criteria," with the 30-day period being referred to as the "Market Criteria Period"), into Common Stockand the Conversion Shelf Registration Statement described in paragraph 2 hereof is effective and available, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount all of the Notes (plus cash in lieu will be automatically converted into that number of fractional shares Conversion Shares derived by application of the Conversion Ratio; provided, however, that if the Market Criteria is satisfied during the first year after the Closing Date, the conversion will not occur until the one-year anniversary of the Closing Date and will occur only if the closing price on the Neuer Markt of the Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own is at least (as determined in accordance with Section 13(d) Euro)32.00 on such date: Closing ------- 12 Months Beginning Price ------------------- ----- August 15, 1999 (Euro)32.00 August 15, 2000 (Euro)38.46 August 15, 2001 (Euro)44.92 August 15, 2002 (Euro)51.37 August 15, 2003 (Euro)57.83 The denominator of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate Ratio is subject to adjustment pursuant to as provided in Section 12.06.
(b) Following the receipt 10.5 of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion EventIndenture.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Indenture (Cybernet Internet Services International Inc), Indenture (Cybernet Internet Services International Inc)
Conversion. A Holder of a Security may convert the principal amount of such Security (aor any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, into Shares at any time on or after the opening of business on the 120th day after the Issue Date and from time to time, on any Business Day, or prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the seventh Business Day immediately preceding prior to the Redemption Stated Maturity Date or of the Securities, at the Conversion Ratio then in effect; provided, however, that if such Security is (2i) called for redemption pursuant to Article 11, such conversion right shall terminate at the close of business on the seventh Business Day immediately preceding the Maturity DateRedemption Date for such Security or such earlier date as the Holder presents such Security for redemption (unless the Company shall default in making the redemption payment when due, into Common Stockin which case the conversion right shall terminate at the close of business on the date such Event of Default is cured and such Security is redeemed) or (ii) submitted or presented for purchase pursuant to Article 13, such conversion right shall terminate at a the close of business on the Change of Control Purchase Date for such Security or such earlier date as the Holder presents such Security for redemption or for purchase (unless the Guarantor shall default in making the Change of Control Purchase Price payment when due, in which case the conversion rate right shall terminate at the close of business on the date such Event of Default is cured and such Security is purchased). The initial Conversion Ratio (the “"Conversion Rate”Ratio") is [ ], subject to adjustment as provided in this Article 18 of 81.2 shares per the Indenture. Each Holder's right to convert Securities into Shares is subject to the Guarantor's right to elect to instead pay such Holder the amount of cash set forth in the next succeeding sentence, in lieu of delivering such Shares (a "Cash Alternative"). The amount of cash to be paid, if the Guarantor elects a Cash Alternative, for each $1,000 in principal amount of a Security upon conversion, shall be equal to the Notes Current Market Price of an ADS on the ninth Trading Day following the Conversion Date, multiplied by the Conversion Ratio in effect on such Trading Day (plus a "Cash Alternative Payment"). Such payment shall be effected not later than ten Trading Days following the relevant Conversion Date. Except as otherwise provided in Section 18.1 of the Indenture, the Guarantor may not revoke such election once such notification has been provided. The Guarantor shall not pay a Cash Alternative upon the conversion of any Security pursuant to the terms of Section 18.1 of the Indenture (other than cash in lieu of fractional shares pursuant to Section 18.3), if there has occurred (prior to, on or after, as the case may be, the Conversion Date or the date on which the Guarantor delivers its notice electing to pay a Cash Alternative) and is continuing an Event of Common Stock Default (other than a default in the payment of such Cash Alternative on such Securities); provided, however, that this sentence shall not apply in the event that an Event of Default occurs after such Cash Alternative is paid. The Guarantor shall not deliver a notice electing to, and shall not, directly or indirectly, pay a Cash Alternative at any time any Existing EPIL Indebtedness is outstanding. A Security in respect of which a Holder has delivered a Change of Control Purchase Notice pursuant to Section 13.1(c) of the Indenture exercising the option of such Holder to require the Company to purchase such Security may be converted only if such Change of Control Purchase Notice is withdrawn in accordance with Section 12.03)the terms of the Indenture. A Holder of Securities is not entitled to any rights of a holder of Shares until such Holder has converted its Securities into Shares, and only to the extent such Securities are deemed to have been converted into Shares pursuant to this Article 18 of the Indenture. If the Guarantor is party to a consolidation, merger or binding share exchange or a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Guarantor which is otherwise permitted under the terms of the Indenture, pursuant to which the Ordinary Shares are converted into the right to receive other securities, cash or other assets, then, subject to the second proviso of this paragraph, the right to convert a Security into Shares will be transformed into a right to convert such Security for the kind and amount of securities, cash or other assets which the Holder would have received if the Holder had converted such Security immediately prior to such consolidation, merger, exchange or transfer; provided that that, if such consolidation, merger, exchange or transfer constitutes a Change of Control pursuant to which, during the 90 days following such Change of Control, the Conversion Ratio is determined as provided in Section 18.10 of the Indenture, the Holder, in connection with any Holder of Notes who would beneficially own (as conversion occurring during such 90 day period, shall be deemed to have converted such Holder's Securities at the Conversion Ratio determined in accordance with Section 13(d) 18.10 of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% Indenture; provided, further, that, if any part of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice Total Consideration paid to the Company prior to holders of Ordinary Shares in connection with any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt Change of the Required Stockholder Approval and the effectiveness Control consists of the Charter AmendmentListed Equity Securities, the Company shall right to convert (a Security into Shares will, from and after the “Mandatory Conversion”) any outstanding Notes 91st day after such Change of Control, be transformed into a right to convert such Security into a number of shares of Common Stock per $1,000 principal amount of Notes such Listed Equity Securities equal to the Conversion Rate then in effect sum of (plus cash in lieu i) the number of fractional shares) Listed Equity Securities which the Holder would have received if the Daily VWAP Holder had converted such Security immediately prior to such Change of Control and (ii) a number of Listed Equity Securities having a Market Value on the Common Stock exceeds or is date of such Change of Control equal to the Threshold Price fair market value of the Total Consideration (excluding Listed Equity Securities referred to in clause (i) of this sentence) which the Holder would have received if the Holder had converted such Security immediately prior to such Change of Control. To convert a Security, a Holder must (i) complete and manually sign the conversion notice set forth below and deliver such notice to a Conversion Agent, (ii) surrender the Security to a Conversion Agent and (iii) pay any tax required pursuant to Section 18.4 of the Indenture. In the case of Global Securities, conversion notices may be delivered and such Securities may be surrendered for conversion in accordance with the Applicable Procedures as in effect from time to time. Securities so surrendered for conversion (in whole or in part) during the period from the close of business on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice any Regular Record Date to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open opening of business on the second next succeeding Interest Payment Date (excluding Securities or portions thereof called for redemption or presented for purchase on a Redemption Date or Change of Control Purchase Date, as the case may be, during the period beginning at the close of business day following such Mandatory Conversion Event, which notice shall specify that on a Regular Record Date and ending at the Mandatory Conversion shall occur not later than the third opening of business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the first Business Day after the next succeeding Interest Payment Date, or if such interest payment date of occurrence of the Optional Conversion or the Mandatory Conversion (such dateis not a Business Day, the “Conversion Date”). The accrued and unpaid second such Business Day) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to such Interest Payment Date on the principal amount of such Note Security then being converted.
(d) If a , and such interest shall be payable to such registered Holder exercises its right to require notwithstanding the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness conversion of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionSecurity.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Limited Waiver (Elan Corp PLC), Limited Waiver (Elan Corp PLC)
Conversion. Lender and Borrower agree that, on and following the Conversion Trigger Date, Lender has the right to convert all or any portion of the Obligations (i.e., principal amount of all Credit Extensions and accrued and unpaid interest thereon under this Agreement) into shares of Series A Preferred Stock of RMG Networks Holdings Corporation (“Series A Preferred Stock”) on the terms set forth in the Certificate of Designation set forth as Exhibit B hereto. The “Conversion Trigger Date” shall mean the earlier of (a) At any time 150 days following the receipt execution of the Required Stockholder Approval and Merger Agreement or (b) the effectiveness termination of the Charter Amendment, Holders Merger Agreement pursuant to Sections 8.01(d) (failure to receive shareholder vote upon a final vote) or 8.01(e) (Company breach) thereof; provided that if the Borrower terminated the Merger Agreement under Section 8.01(h) of the Notes Merger Agreement within the period referenced in clause (a) in order to enter into a definitive agreement with respect to a Superior Proposal (as defined in the Merger Agreement), the Conversion Trigger Date shall have be the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest later of (1) if applicable, 150 days following the execution of the Merger Agreement or (2) 100 days following the execution of such definitive agreement with respect to a Note called for redemptionSuperior Proposal. Notwithstanding anything to the contrary, Lender shall have no right to convert the close Obligations into any shares of business on the Business Day immediately preceding the Redemption Date or Series A Preferred Stock if (2a) the close of business on Penalty Loan Conditions are satisfied, (b) the Business Day immediately preceding Borrower shall have consummated prior to the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own Trigger Date an Unaffiliated Exit Event (as determined defined in accordance Exhibit B hereof) pursuant to an acquisition agreement with Section 13(d) a Person other than the Lender or its Affiliates and in which the public common stockholders of the Exchange Act and the rules and regulations promulgated thereunder) RMG Networks Holdings Corporation receive a fixed price in such transaction in excess of 9.99% $1.27 per share of common stock or (c) Lender fails to escrow funds with (or provide a letter of credit to) the outstanding shares Escrow Agent in amount of Common Stock upon conversion of such Holder’s Notes shall be $1,000,000 as required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
2.2(b) and Lender has not cured or rectified such failure (bother than failing to perform by the initial required date) Following prior to the receipt termination of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion EventMerger Agreement.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Subordination Agreement (RMG Networks Holding Corp), Subordination Agreement (RMG Networks Holding Corp)
Conversion. Subject to applicable stock exchange listing rule limitations (a) At any time following including, if applicable, approval by the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding NotesBorrower’s stockholders), at any time or times on or after the date of the consummation of the Borrower’s initial public offering and from time listing of its Common Stock on a national securities exchange (the “IPO Date”), the Holder shall be entitled, at the Holder’s election, to timeconvert all or any portion of the outstanding Principal Amount and accrued but unpaid interest under this Note into validly issued, on any Business Day, prior fully paid and non-assessable shares of Common Stock at the Conversion Price (as defined below) upon written notice to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate Borrower (the “Conversion RateNotice”) ), which Conversion Notice shall state the portion of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99this Note being converted. “Conversion Price” means 110% of the outstanding shares price at which the Borrower consummates its initial public offering of its Common Stock upon conversion of on the IPO Date. On or before the third (3rd) trading day following the date on which the Borrower has received a Conversion Notice, Borrower shall credit such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a aggregate number of shares of Common Stock per $1,000 principal amount of Notes equal to which the Holder shall be entitled pursuant to such conversion to the Conversion Rate then in effect (plus cash in lieu Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system. Upon such conversion of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal this Note, Holder hereby agrees to execute and deliver to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days Borrower the original of this Note (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver or a notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify effect that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion original Note has been lost, stolen or the Mandatory Conversion (such date, the “Conversion Date”). The accrued destroyed and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added agreement acceptable to the principal amount of such Note being converted.
(d) If a Borrower whereby the Holder exercises its right agrees to require indemnify the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if Borrower from any loss incurred by it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(ethis Note) In the event for cancellation; provided, however, that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date upon delivery of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional ConversionNotice, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise this Note shall be deemed to be an “affiliate” converted and of the Company no further force and effect, whether or not it is delivered for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversioncancellation as set forth in this sentence.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Convertible Security Agreement (PishPosh, Inc.), Convertible Security Agreement (PishPosh, Inc.)
Conversion. (a) At Subject to compliance with Section 11.02, at any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentReduction Cutoff Date, Holders of the Notes a Holder shall have the right to convert all or any portion (the if such portion is $1,000 Original Principal Amount or an integral multiple of $1,000 principal amount) of its Notes (“Optional Early Conversion”) their outstanding Notes), at any time and from time to time, on any Business Day, prior to the earliest of (1i) if applicable, the close of business on the fifth Business Day following the date of a Mandatory Conversion Notice delivered in accordance with Section 11.01(c), (ii) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2iii) the close of business on the Business Day immediately preceding the Maturity Datematurity date, into a number of shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal amount Original Principal Amount of Notes being converted equal to the Notes Conversion Rate then in effect (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.0311.03); provided that any . In addition, upon an Early Conversion, a Holder shall have the right to receive in cash, with respect to its Notes being converted, per $1,000 Original Principal Amount of Notes who would beneficially own (as determined being converted, accrued and unpaid interest to the Early Conversion Date in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.0611.02(b).
(b) [Reserved]
(c) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentReduction Cutoff Date, the Company shall have the right to convert the Notes (the “Mandatory Conversion”) any outstanding Notes ), in whole or in part, into a number of shares of Common Stock per $1,000 principal amount Original Principal Amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional sharesshares of Common Stock in accordance with Section 11.03), if each of the following conditions are satisfied: (i) if the Daily VWAP of the Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 20 Trading Days (whether or not consecutive) during any period of 30 consecutive Trading Days commencing after the Reduction Cutoff Date (the “Mandatory Conversion EventVWAP Condition”). Upon the occurrence of the Mandatory Conversion Event, ) and (ii) the Company shall deliver notice delivers to the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not notice of the Company’s election of its right to convert the Notes no later than the open of business on the second business day third Business Day immediately following the 20th Trading Day on which the Threshold Price was exceeded of any such 30 Trading Day period (a “Mandatory Conversion EventNotice”), which notice shall specify that the Mandatory Conversion shall occur not later than on the third business day sixth Business Day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion such notice (such date, the “Mandatory Conversion Date”); provided that, the Company’s right to cause a Mandatory Conversion shall be suspended during the period beginning on the date a Change of Control Offer is made and continuing to, and including, the applicable Change of Control Settlement Date. The Cash equal to accrued and but unpaid interest on any Note with respect to the Notes being converted pursuant to an Optional Conversion or any Mandatory Conversion to but excluding the applicable Mandatory Conversion Date shall also be added payable on such Mandatory Conversion Date; provided, that if such Mandatory Conversion Date occurs during the period after the close of business on any Record Date and before the opening of business on the corresponding Interest Payment Date, interest with respect to the principal amount Notes converted will be payable on such Interest Payment Date to the Holders in whose names the Notes are registered at the close of business on such Note being convertedRecord Date. The Mandatory Conversion Notice shall state that the Company is exercising its right to cause a Mandatory Conversion, the Conversion Rate and Conversion Price in effect on the Mandatory Conversion Date.
(d) If Notwithstanding the foregoing, a Holder exercises Reduction shall only occur, and the Company may only exercise its right to require cause a Mandatory Conversion, if, as evidenced by an Officers’ Certificate delivered to the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change Trustee and the Conversion Agent (if other than the Trustee) on any Reduction Settlement Date and any Mandatory Conversion Date, as applicable, all of Control Offer in accordance with Section 4.10 or Section 4.15the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing on, respectivelyand including, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Reduction Notice (with respect to any Reduction) and any Mandatory Conversion Notice and ending with the effectiveness of such Optional ConversionNotice, as applicable, and (2y) in ending on, and including, the case of a corresponding Reduction Settlement Date (with respect to any Reduction) or Mandatory Conversion pursuant to Section 12.01(bDate, as applicable (the “Equity Conditions Measuring Period”), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own . The Equity Conditions are as follows:
(as determined in accordance with Section 13(di) of the Exchange Act and the rules and regulations promulgated thereundereither (1) in excess of 9.99% of the outstanding all shares of Common Stock or otherwise be deemed to be an “affiliate” issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for purposes sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such conversion.shelf registration statement to remain effective and available for use from the applicable Reduction Date (with respect to any Reduction) or the Mandatory Conversion Date until thirty days following such date;
(fii) At the request Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) to be delivered on such conversion is listed or traded on The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market, or any of their respective successors (each, an “Eligible Market”) and shall not then be suspended from trading on such Eligible Market;
(iii) at or prior to any HolderMandatory Conversion Settlement Date, for any Notes validly surrendered for conversion with an Early Conversion Date prior to the Mandatory Conversion Date in accordance with the terms of this Indenture, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of the Notes to the Holders in accordance with Section 11.01(a);
(iv) shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of The New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and
(v) no Event of Default shall have occurred and be continuing. For the avoidance of doubt, the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant may exercise its right to Section 12.01(a) or cause more than one Mandatory Conversion pursuant so long as any Notes are outstanding so long as it complies with the other requirements of this Section 11.01(d). If the Company exercises its right to Section 12.01(bcause a Mandatory Conversion in part, the Conversion Agent will select the Notes to be converted pro rata, by lot or by any other method the Conversion Agent in its sole discretion deems fair and appropriate (or, in the case of Notes represented by Global Notes, in such manner as DTC may require), in denominations of Original Principal Amount of $1,000 or any integral $1,000 multiple in excess thereof.
Appears in 2 contracts
Sources: Sixth Supplemental Indenture (Whiting Petroleum Corp), Fifth Supplemental Indenture (Whiting Petroleum Corp)
Conversion. (a) At any time following In the receipt of event the Required Stockholder Approval ITAC/IXI Merger becomes effective and subject to and conditioned upon the effectiveness of the Charter AmendmentITAC/IXI Merger becoming effective, Holders of the Notes each Conversion Participant shall have the right option to convert its respective Conversion Amount pursuant to this Agreement and the ITAC Certification into such number of fully paid and non-assessable shares of ITAC’s Common Stock, par value $0.0001 per share (the “Optional ConversionITAC Stock”) their outstanding Notesas determined by dividing (A) such Conversion Participant’s Conversion Amount by (B) $6.50, at any time appropriately adjusted for stock dividends, stock splits and from time other recapitalizations subsequent to time, on any Business Day, the date of ITAC’s most recent publicly available securities law filing prior to the earliest execution of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06this Agreement.
(b) Following At any time on or after the receipt First Interest Payment Date, in the event the ITAC/IXI Merger is rejected by ITAC’s shareholders or otherwise fails to become effective, each Conversion Participant shall have the option to convert its respective Conversion Amount into such number of fully paid and non-assessable shares of Series E Preferred Stock, par value $0.01, of the Required Stockholder Approval Parent Guarantor (“IXI Stock”) as determined by dividing (A) such Conversion Participant’s Conversion Amount by (B) $0.656. The rights, preferences and the effectiveness privileges of the Charter Amendment, IXI Stock shall be as set forth in the Company shall convert currently effective 9th Amended and Restated Certificate of Incorporation of the Parent Guarantor attached hereto as Exhibit H (the “Mandatory Conversion”) any outstanding Notes into a number Amended and Restated Certificate of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion EventIncorporation”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest No fractional shares of Conversion Stock shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to be issued upon an Optional Conversion or Mandatory Conversion shall be added to the principal amount Conversion. If, upon an Optional Conversion, a fraction of a share would otherwise result, then in lieu of such Note being converted.
fractional share the Parent Guarantor (d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and 3.2(b) above) or ITAC (2) in the case of a Mandatory an Optional Conversion pursuant to the combined provisions of Section 3.2(a) above and the ITAC Certification) will pay the cash value of that fractional share.
(d) An Optional Conversion shall be effectuated by the Conversion Participant by furnishing both the Parent Guarantor and ITAC (in the case of an Optional Conversion pursuant to the combined provisions of Section 3.2(a) above and the ITAC Certification) or by furnishing the Parent Guarantor (in the case of an Optional Conversion pursuant to Section 12.01(b3.2(b) above), at any time beginning with no later than within sixty (60) Business Days following the closing date of the Mandatory ITAC/IXI Merger (in the case of an Optional Conversion Event pursuant to the combined provisions of Section 3.2(a) above and ending 30 calendar days the ITAC Certification) or no later than within sixty (60) Business Days following the effectiveness date on which the Conversion Participant receives notice from the Parent Guarantor that the ITAC/IXI Merger failed to become effective and the Company failed to make the first interest payment on the First Interest Payment Date (in the case of an Optional Conversion pursuant to Section 3.2(b) above), a notice indicating the Conversion Participant’s Conversion Amount and otherwise evidencing such conversionConversion Participant’s intention to convert its respective Conversion Amount (the “Conversion Notice”). Should any Lender and/or Leumi Guarantor fail to deliver a Conversion Notice within the timeframe and to the party or parties set forth above, that such Holder will beneficially own (as determined in accordance with Section 13(d) Lender and/or Leumi Guarantor shall be deemed to have waived its right for Optional Conversion and such right shall automatically, without any action on the part of the Exchange Act Parent Guarantor and/or ITAC, be of no further force and effect with respect to such Lender and/or Leumi Guarantor.
(e) The date on which the rules and regulations promulgated thereunder) in excess of 9.99% of Conversion Participant delivers the outstanding shares of Common Stock or otherwise Conversion Notice, duly executed, to the Parent Guarantor shall be deemed to be an the date of Optional Conversion (the “affiliate” Optional Conversion Date”) for the purposes of determining the Conversion Amount. Facsimile delivery of the Company for purposes of Conversion Notice shall be accepted by the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering Parent Guarantor. Certificates representing the shares of Common Conversion Stock received issuable upon such conversionan Optional Conversion, containing the restrictive legend then in effect, will be delivered to the Conversion Participant as soon as practicable after the Optional Conversion Date.
(f) At the request of any Holder, the Company Any Conversion Amount converted into Conversion Stock will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder be deemed fully paid and all Obligations relating thereto will not be an “affiliate” deemed fully satisfied. Upon issuance of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)conversion stock, such shares shall be duly and validly issued.
Appears in 2 contracts
Sources: Loan Agreement (Israel Technology Acquisition Corp.), Loan Agreement (Israel Technology Acquisition Corp.)
Conversion. (a) At any time following Upon the receipt closing of the Required Stockholder Approval and Merger (as referred to in the effectiveness Note Agreement), all of Shockwave's indebtedness under this Note shall become convertible into equity securities of the Charter Amendmentsurviving corporation, Holders of the Notes shall have the right convert Shockwave (the “Optional Conversion”) their outstanding Notes"SERIES NEXT PREFERRED Stock"), at any time and from time to timeissued in Shockwave's next private equity financing (the "NEXT EQUITY FINANCING"), on any Business Day, provided the Next Equity Financing closes prior to the earliest Maturity Date of (1) if applicablethis Note. Upon the Next Equity Financing, with respect to a Borrower's indebtedness under this Note called for redemption, the close shall automatically be converted into that number of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional fully paid and nonassessable shares of Common Shockwave's Series Next Preferred Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence dollar amount of the Mandatory Conversion Event, the Company shall deliver notice to the Holders all principal outstanding and interest accrued as of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note conversion being converted pursuant into stock by Holder, divided by the price per share of Shockwave's Series Next Preferred Stock at which such Series Next Preferred Stock is or will be offered to an Optional other Series Next Preferred Stock investors (the "CONVERSION PRICE"); provided, however, that the Conversion Price will automatically, equitably and proportionally be adjusted to reflect any subdivision (stock split), combination (reverse stock split), stock dividend or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) other recapitalization affecting Shockwave's Series Next Preferred Stock. In the event that any Holder notified the Company Merger Agreement (1) as referred to in the case Note Agreement) is terminated according to its terms, all of an Optional Borrower's indebtedness under this Note shall automatically be converted into Borrower's Series D Preferred Stock based upon a fully diluted pre-money valuation of Borrower's equity of $75,000,000 (the "BORROWER CONVERSION PRICE"); provided, however, that the Conversion pursuant Price will automatically, equitably and proportionally be adjusted to Section 12.01(areflect any subdivision (stock split), at any time beginning combination (reverse stock split), stock dividend or other recapitalization affecting Borrower's Series D Preferred Stock. Such Series D Preferred Stock received by Holder will have rights, privileges, preferences and restrictions no less favorable than Borrower's Series C Preferred Stock in existence on the date of the provision Note Agreement and any Series D Preferred Stock issued subsequent to that date, and will have a liquidation preference based upon the price per share of the Optional Conversion Notice Series D Preferred Stock. Borrower covenants and ending agrees with Holder that Borrower will not in any way alter, amend or modify any of the effectiveness rights, preferences, privileges or restrictions of such Optional ConversionBorrower's Series D Preferred Stock, and (2) or to issue, eliminate or reduce the number of authorized shares of Borrower's Series D Preferred Stock. Upon the conversion of Borrower's outstanding indebtedness hereunder pursuant to this Section, Borrower, at its expense, will as soon as practicable cause to be issued in the case name of and delivered to Holder, a certificate or certificates for the number of fully paid and nonassessable shares of Borrower's Series D Preferred Stock to which Holder is entitled upon such conversion. Such certificates will include legends required federal and applicable state securities laws. No fractional shares will be issued upon any conversion of this Note or any part hereof. If, upon any conversion of this Note, a fraction of a Mandatory Conversion pursuant share would otherwise result, then Shockwave or Borrower, as the case may be, will pay Holder an amount of cash equal to Section 12.01(b), at any time beginning with the date fair market value of one share of the Mandatory Conversion Event type and ending 30 calendar days following the effectiveness class of capital stock issuable to Holder upon such conversion, that such Holder will beneficially own conversion (as determined in accordance with Section 13(d) the Conversion Price or Borrower Conversion Price, as the case may be, applicable at the time of such conversion), multiplied by the Exchange Act and the rules and regulations promulgated thereunder) in excess fraction of 9.99% a share of the outstanding shares of Common Stock or stock to which Holder would otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionentitled.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Macromedia Inc), Agreement and Plan of Reorganization (Macromedia Inc)
Conversion. The Series A Preferred Shares are not convertible into or exchangeable for any other property or securities of the Trust, except as provided in this Section 8.
(a) At any time following Upon the receipt occurrence of the Required Stockholder Approval and the effectiveness a Change of the Charter AmendmentControl, Holders each holder of the Notes Series A Preferred Shares shall have the right convert (the “Optional Conversion”) their outstanding Notesright, at any time and from time to time, on any Business Dayunless, prior to the earliest Change of Control Conversion Date, the Trust has provided or provides notice of its election to redeem the Series A Preferred Shares pursuant to the Redemption Right or Special Optional Redemption Right, to convert some or all of the Series A Preferred Shares held by such holder (the “Change of Control Conversion Right”) on the Change of Control Conversion Date into a number of Common Shares, per Series A Preferred Share to be converted (the “Common Share Conversion Consideration”) equal to the lesser of (1A) if applicablethe quotient obtained by dividing (i) the sum of (x) the $25.00 liquidation preference per Series A Preferred Share to be converted plus (y) the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case no additional amount for such accrued and unpaid dividends will be included in such sum) by (ii) the Common Share Price (as defined herein) and (B) [ ] (the “Share Cap”), subject to the immediately succeeding paragraph. The Share Cap is subject to pro rata adjustments for any share splits (including those effected pursuant to a distribution of the Common Shares), subdivisions or combinations (in each case, a “Share Split”) with respect to the Common Shares as follows: the adjusted Share Cap as the result of a Note called for redemptionShare Split shall be the number of Common Shares that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to such Share Split by (ii) a fraction, the close numerator of business on which is the Business Day number of Common Shares outstanding after giving effect to such Share Split and the denominator of which is the number of Common Shares outstanding immediately preceding prior to such Share Split. In the Redemption Date case of a Change of Control pursuant to which Common Shares shall be converted into cash, securities or other property or assets (2including any combination thereof) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion RateAlternative Form Consideration”) ), a holder of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock Series A Preferred Shares shall receive upon conversion of such Holder’s Notes shall be required Series A Preferred Shares the kind and amount of Alternative Form Consideration which such holder would have owned or been entitled to provide 61 days’ written notice receive upon the Change of Control had such holder held a number of Common Shares equal to the Company Common Share Conversion Consideration immediately prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt effective time of the Required Stockholder Approval and the effectiveness Change of the Charter Amendment, the Company shall convert Control (the “Mandatory ConversionAlternative Conversion Consideration”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of ; and the Common Stock exceeds Share Conversion Consideration or is equal the Alternative Conversion Consideration, as may be applicable to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (a Change of Control, shall be referred to herein as the “Mandatory Conversion EventConsideration”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified holders of Common Shares have the Company (1) opportunity to elect the form of consideration to be received in the case Change of an Optional Control, the Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder Consideration will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” the kind and amount of consideration actually received by holders of a majority of the Company Common Shares that voted for purposes such an election (if electing between two types of consideration) or holders of a plurality of the Securities Act and/or Common Shares that voted for such an election (if electing between more than two types of consideration), as the Exchange upon such conversioncase may be, then the Company and will promptly enter into a Registration Rights Agreement covering the shares be subject to any limitations to which all holders of Common Stock received upon such conversion.
(f) At the request of Shares are subject, including, without limitation, pro rata reductions applicable to any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” portion of the Company for purposes consideration payable in the Change of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Control.
Appears in 2 contracts
Sources: Merger Agreement (Chambers Street Properties), Merger Agreement (Gramercy Property Trust Inc.)
Conversion. (a) (i) At any time following the receipt time, until this Debenture is no longer outstanding, this Debenture, including interest and principal, shall be convertible into shares of Common Stock at a price of Fifty Percent (50%) of the Required Stockholder Approval and average closing bid price, determined on the effectiveness of then current trading market for the Charter AmendmentCommon Stock, Holders of for the Notes shall have ten Business Days prior to the right convert Conversion Date, (the “Optional ConversionSet Price”) their outstanding Notes), at the option of the Holder, in whole or in part, at any time and from time to time, on any Business Day, prior . The Holder shall effect conversions by delivering to the earliest Company a Notice of (1) if applicable, with respect to a Note called for redemptionConversion, the close form of business which is attached hereto as Annex A (a “Notice of Conversion”), specifying the date on the Business Day immediately preceding the Redemption Date or which such conversion is to be effected (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion RateDate”) ). If no Conversion Date is specified in a Notice of 81.2 shares per $1,000 principal amount Conversion, the Conversion Date shall be five Business Days following the date that such Notice of Conversion is provided hereunder. To effect conversions hereunder, the Holder shall be required to physically surrender this Debenture to the Company or a notarized affidavit of lost debenture regarding this Debenture. The Company shall deliver any objection to any Notice of Conversion within two Business Days of receipt of such Notice of Conversion. In the event of any dispute or discrepancy, the records of the Notes (plus cash Company shall be controlling and determinative in lieu the absence of fractional manifest error. If the Company does not issue the shares of Common Stock underlying this Debenture after receipt of a Notice of Conversion within five (5) Business days following the period allowed for any objection, the Company shall be responsible for any differential in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) the value of the Exchange Act converted shares of Common Stock underlying this Debenture between the value of the closing price on the date which is ten Business Days after the Conversion Date and the rules date the shares of Common Stock are delivered. The Holder and regulations promulgated thereunder) in excess any assignee, by acceptance of 9.99% this Debenture, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Debenture, the unpaid and unconverted principal amount of this Debenture may be less than the amount stated on the face hereof.
(ii) If the Company, at any time while this Debenture is outstanding: (A) shall pay a Common Stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company pursuant to this Debenture, including as interest thereon), (B) subdivide outstanding shares of Common Stock upon conversion into a larger number of such Holder’s Notes shares, (C) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (D) issue by reclassification of shares of the Common Stock any shares of Common Stock, then the Set Price shall be required to provide 61 days’ written notice to multiplied by a fraction of which the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following numerator shall be the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount (excluding treasury shares, if any) outstanding before such event and of Notes equal to which the Conversion Rate then in effect (plus cash in lieu denominator shall be the number of fractional shares) if the Daily VWAP shares of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”)outstanding after such event. Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted Any adjustment made pursuant to an Optional Conversion this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or Mandatory Conversion distribution and shall be added to become effective immediately after the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the effective date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion subdivision, combination or re-classification.
(iii) Whenever the Set Price is adjusted pursuant to Section 12.01(b)this Section, the Company shall promptly mail to each Holder a notice setting forth the Set Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
(iv) If (A) the Company shall declare a dividend (or any other distribution) on the Common Stock; (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock; (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, of any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company; then, in each case, the Company shall mail to the Holders, at their last addresses as they shall appear upon the stock books of the Company, at least 20 calendar days prior to the applicable record or effective date, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. Holders are entitled to convert Debentures during the 20-day period commencing the date of such notice to the effective date of the event triggering such notice.
(v) If, at any time beginning with while this Debenture is outstanding, (A) the date Company effects any merger or consolidation of the Mandatory Conversion Event Company with or into another Person, (B) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (C) any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property, or (D) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”), then upon any subsequent conversion of this Debenture, the Holder shall have the right to receive the same kind and ending 30 calendar days following amount of securities, cash or property as it would have been entitled to receive upon the effectiveness occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of Common Stock (the “Alternate Consideration”), unless the Company received no Alternate Consideration in such Fundamental Transaction (ie. an exchange offer open only to shareholders of the Company). For purposes of any such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) the determination of the Exchange Act Set Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in such Fundamental Transaction, and the rules and regulations promulgated thereunder) Company shall apportion the Set Price among the Alternate Consideration in excess a reasonable manner reflecting the relative value of 9.99% any different components of the outstanding Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Debenture following such Fundamental Transaction. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this paragraph and insuring that this Debenture will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
(b) The Company covenants that it will reserve and keep available, out of its authorized and unissued shares of Common Stock, solely for the purpose of issuance upon conversion of this Debenture, a sufficient number of shares of Common Stock or otherwise be deemed required to be an “affiliate” issued upon a conversion of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionthis Debenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Securities Agreement (Kibush Capital Corp), Securities Agreement (Kibush Capital Corp)
Conversion. (a) At any time following 1.1 Without prejudice to the receipt provisions paragraphs 4.3 to 4.11 of the Required Stockholder Approval and the effectiveness of the Charter AmendmentSchedule 2 Part 1, Holders of the Notes shall have not be capable of conversion prior to Shareholder Approval having been obtained and no Noteholder shall serve any Conversion Notice prior to such time.
1.2 Subject to paragraph 1.1 and paragraph 1.4 of this Part 2 of Schedule 2, all outstanding Tranche 1 Notes shall automatically convert into a number of fully paid Ordinary Shares upon Shareholder Approval being obtained, determined by dividing (x) the right convert sum of (i) the outstanding principal amount, plus (ii) all accrued and unpaid interest thereon, plus (iii) any amount of the Uplift Payment (to the extent the same is applicable pursuant to the terms of this Instrument) which has become due and payable in accordance with paragraph 4.2 and has not already been paid or satisfied by the issue of Uplift Securities (or otherwise), by (y) the Tranche 1 Conversion Price then in effect; provided that (but subject to paragraph 1.4 of this Part 2 of Schedule 2 below) following such conversion, no individual Noteholder shall hold more than 9.99% of the aggregate voting rights in the Company (on a fully diluted basis) (the “Optional ConversionOwnership Limit”) their outstanding Notes, at ). In the event that Conversion of any time and from time to time, on any Business Day, prior to Noteholder’s holding of Notes would result in such Noteholder exceeding the earliest of (1) if applicable, with respect to a Note called for redemptionOwnership Limit, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes held by such Noteholder which shall convert shall be the greatest amount possible without that Noteholder exceeding such Ownership Limit and the remaining principal balance on such Notes shall remain outstanding.
1.3 Subject to paragraphs 1.1, 1.2 and 1.4 of this Part 2 of Schedule 2:
(plus cash a) each Noteholder holding Tranche 1 Notes shall have the right, at any time prior to the Tranche 1 Maturity Date, to serve a Conversion Notice on the Company to convert all or, if the Ownership Limit applies, part of such Noteholder’s Tranche 1 Notes then outstanding (together with any accrued but unpaid interest thereon) into fully paid Ordinary Shares at the Tranche 1 Conversion Price per Share; and
(b) each Noteholder holding Tranche 2 Notes shall have the right, at any time prior to the Tranche 2 Maturity Date applicable to such Noteholder’s Tranche 2 Notes, to serve a Conversion Notice on the Company to convert all or, if the Ownership Limit applies, part of such Noteholder’s Tranche 2 Notes then outstanding (together with any accrued but unpaid interest thereon) into fully paid Ordinary Shares at the Tranche 2 Conversion Price per Share, provided that, in lieu each of fractional shares the foregoing cases, at the time of Common Stock the Conversion Notice, either (i) such Noteholder’s aggregate voting rights in the Company is not in excess of the Ownership Limit and would not become in excess of the Ownership Limit as a result of the conversion contemplated by such Conversion Notice; or (ii) such Noteholder has waived the application of the Ownership Limit in accordance with Section 12.03)paragraph 1.4 of this Part 2 of Schedule 2.
1.4 Notwithstanding the foregoing, a Noteholder may increase or decrease the Ownership Limit to any other percentage, by written notice to the Company; provided, that the Noteholder may not decrease the limitation prior to August 8, 2020; provided further that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) a waiver by the Noteholder of the Exchange Act and Ownership Limit or a request to increase the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide Ownership Limit requires not less than 61 days’ days prior written notice to the Company prior (with such waiver of the Ownership Limit or request to increase the Ownership Limit taking effect only upon the expiration of such 61 day notice period and applying only to the Noteholder and not to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(bother holder of Notes) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise Ownership Limit shall never be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).increased above 19.99
Appears in 2 contracts
Sources: Convertible Loan Note Instrument (Mereo Biopharma Group PLC), Convertible Loan Note Instrument (Mereo Biopharma Group PLC)
Conversion. (a) At any time following on or prior to the receipt of Maturity Date, (i) without Shareholder Approval, the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Agent shall have the right to convert (the any such conversion, a “Optional Conversion”) their outstanding Notesany portion of the principal and accrued interest of the Term Loans into shares of common stock, at any time and from time to time, on any Business Day, prior to the earliest no par value of Parent (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into “Parent Common Stock, at a conversion rate (the “Conversion Rate”) that represent, in the aggregate in the event of 81.2 more than one conversion election pursuant to this clause (i), a number of shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99not exceeding 19.90% of the outstanding shares of Parent Common Stock as of the date hereof and equaling the total amount of principal and accrued interest of the Term Loans being Converted divided by the Conversion Price upon conversion Agent’s delivery of notice of its intent to effectuate such Conversion (any such notice, a “Conversion Notice”) and (ii) with Shareholder Approval, the Agent shall have the right to Convert any portion of the principal and accrued interest of the Term Loans into shares of Parent Common Stock in any amount and equaling the total amount of principal and accrued interest of the Term Loans being Converted divided by the Conversion Price upon Agent’s delivery of a Conversion Notice. Notwithstanding anything herein to the contrary, if any ABL Obligations are outstanding at the time of such Holder’s Notes Conversion, the amount of Parent Common Stock held by the Agent shall not exceed the Conversion Cap. Any Conversion shall be treated as a prepayment of Term Loans hereunder and the outstanding balance of the Term Loans shall be reduced by the amount so repaid upon such Conversion. Upon receipt of Agent’s Conversion Notice, the Borrowers shall cause the Conversion as promptly as possible and shall use commercially reasonable efforts to promptly (and in any event within sixty (60) days of the applicable Conversion Notice) obtain any Shareholder Approval required to provide 61 days’ written notice to the Company prior to any such conversion. The effectuate a Conversion Rate is subject to adjustment pursuant to Section 12.06clause (ii) hereof.
(b) Following All costs and expenses (including filing fees) with respect to filings under any applicable antitrust laws shall be borne by Parent. Parent shall pay any documentary, stamp or similar issue or transfer tax due on the receipt issue of the Required Stockholder Approval Conversion Shares. Parent shall reserve (and shall keep available and free from preemptive rights) and shall continue to reserve out of its authorized but unissued Parent Common Stock a sufficient number of Parent Common Stock to permit the effectiveness issuance of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then Shares in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventfull.
(c) Interest Parent shall cease (i) issue the Conversion Shares to accrue the Lenders on any Notes a pro rata basis based on each Lender’s portion of the outstanding amount of the Term Loans on the date of occurrence of the Optional Conversion or the Mandatory Conversion Date (such date, the “Conversion Date”). The accrued and unpaid interest on along with any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(dshare certificates with respect thereto) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 the applicable Note with respect thereto and on terms substantially consistent with the Subscription Agreement and such Conversion Shares shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, not subject to any preemptive rights, and, be free from all taxes, Liens, security interests, charges, and other encumbrances with respect to the issuance thereof, other than taxes in respect of any transfer occurring contemporaneously with such issue and those under applicable federal, state or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election other securities laws and (ii) provide customary representations and warranties to have its Notes repurchased the Lenders in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with form set forth in the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionSubscription Agreement.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Beyond, Inc.), Term Loan Credit Agreement (Beyond, Inc.)
Conversion. Each share of Series B Preferred Stock may, at the option of the holder thereof, be converted into shares of Common Stock at any time, whether or not the Corporation has given notice of exchange under Section 9, on the terms and conditions set forth in this Section 8. In addition:
(a) At any Subject to the provisions for adjustment hereinafter set forth, each share of Series B Preferred Stock shall be convertible in the manner hereinafter set forth into a number of fully paid and nonassessable shares of Common Stock equal to the product obtained by multiplying the Applicable Conversion Rate by the number of shares of Series B Preferred Stock being converted. The Applicable Conversion Rate shall be the quotient obtained by dividing the Conversion Value on the date of conversion by the applicable Conversion Price.
(b) The Conversion Price shall be subject to adjustment from time following to time as follows:
(i) In case the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Corporation shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and or from time to timetime after the original issuance of the Series B Preferred Stock declare a dividend, or make a distribution, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional outstanding shares of Common Stock in accordance with Section 12.03); provided that any Holder either case, in shares of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% Common Stock, or effect a subdivision, combination, consolidation or reclassification of the outstanding shares of Common Stock upon conversion into a greater or lesser number of shares of Common Stock, then, and in each such Holder’s Notes case, the Conversion Price in effect immediately prior to such event or the record date therefor, whichever is earlier, shall be required to provide 61 days’ written notice to adjusted by multiplying the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentPrice by a fraction, the Company shall convert (numerator of which is the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount that were outstanding immediately prior to such event and the denominator of Notes equal which is the number of shares of Common Stock outstanding immediately after such event. An adjustment made pursuant to this clause (i) shall become effective (x) in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution, or (y) in the case of any such subdivision, reclassification, consolidation or combination, at the close of business on the day upon which such corporate action becomes effective.
(ii) In addition to the foregoing adjustments in subsections (i), the Corporation will be permitted to make such reductions in the Conversion Rate Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock.
(iii) In any case in which this Section 8 shall require that an adjustment (including by reason of the last sentence of subsection (i) above) be made immediately following a record date, the Corporation may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Corporation shall, with respect to any share of Series B Preferred Stock converted after such record date and on and before such adjustment shall have become effective (x) defer paying any cash payment pursuant to Section 8(f) hereof or issuing to the holder of such shares of Series B Preferred Stock the number of shares of Common Stock and other capital stock of the Corporation (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Corporation issuable thereupon only on the basis of the Conversion Price prior to adjustment, and (y) not later than five Business Days after such adjustment shall have become effective, pay to such holder the appropriate cash payment pursuant to Section 8(f) hereof and issue to such holder the additional shares of Common Stock and other capital stock of the Corporation issuable on such conversion.
(iv) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 0.1% of the Conversion Price; provided, that any adjustments which by reason of this subsection (iv) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 8 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(i) In case of any capital reorganization or reclassification of outstanding shares of Common Stock (other than a reclassification covered by paragraph (b) (i) of this Section 8), or in case of any consolidation or merger of the Corporation with or into another corporation, or in case of any sale or conveyance to another corporation of the property of the Corporation as an entirety or substantially as an entirety (each of the foregoing being referred to as a "Transaction"), (x) if such Transaction occurs prior to the Third Anniversary and constitutes or leads to a Change in Control, each holder of Series B Preferred Stock shall then in effect be entitled to the acceleration and immediate vesting of all dividends such holder would have accrued on and prior to the Third Anniversary, and (plus cash y) each share of Series B Preferred Stock then outstanding shall thereafter be convertible into, in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal issuable upon such conversion prior to the Threshold Price consummation of such Transaction, the kind and amount of shares of stock and other securities and property (including cash) receivable upon the consummation of such transaction by a holder of that number of shares of Common Stock into which one share of Series B Preferred Stock was convertible immediately prior to such Transaction (including, on a pro rata basis, the cash, securities or property received by holders of Common Stock in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”any tender or exchange offer that is a step in such Transaction). Upon In any such case, if necessary, appropriate adjustment (as determined by the occurrence Board of Directors) shall be made in the application of the Mandatory Conversion Event, provisions set forth in this Section 8 with respect to rights and interests thereafter of the Company shall deliver notice holders of shares of Series B Preferred Stock to the Holders end that the provisions set forth herein for the protection of the Notesconversion rights of the Series B Preferred Stock shall thereafter be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities and property deliverable upon conversion of the Trustee shares of Series B Preferred Stock remaining outstanding (with such adjustments in the conversion price and number of shares issuable upon conversion and such other adjustments in the Conversion Agent (if provisions hereof as the Board of Directors shall determine to be appropriate). In case securities or property other than the Trustee) (Common Stock shall be issuable or deliverable upon conversion as aforesaid, then all references in this Section 8 shall be deemed to apply, so far as appropriate and as nearly as may be, to such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventother securities or property.
(ii) Notwithstanding anything contained herein to the contrary, the Corporation will not effect any Transaction unless, prior to the consummation thereof, the Surviving Person (as defined in Section 14) thereof shall assume, by written instrument mailed to each record holder of shares of Series B Preferred Stock, at such holder's address as it appears on the transfer books of the Corporation, the obligation to deliver to such holder such cash and such securities to which, in accordance with the foregoing provisions, such holder is entitled. Nothing contained in this paragraph (c) Interest shall cease to accrue on any Notes on limit the date rights of occurrence holders of the Optional Conversion or Series B Preferred Stock to convert the Mandatory Conversion (such date, Series B Preferred Stock in connection with the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being convertedTransaction.
(d) If a Holder exercises The holder of any shares of Series B Preferred Stock may exercise its right to require convert such shares into shares of Common Stock by surrendering for such purpose to the Company Corporation, at its principal office or at such other office or agency maintained by the Corporation for that purpose, a certificate or certificates representing the shares of Series B Preferred Stock to repurchase its Notes pursuant be converted duly endorsed to the Corporation in blank accompanied by a Prepayment Offer written notice stating that such holder elects to convert all or a Change specified whole number of Control Offer such shares in accordance with the provisions of this Section 4.10 8. The Corporation will pay any and all issue and other taxes (other than taxes based on income) that may be payable in respect of any issue or Section 4.15, respectively, such Holder may convert its Notes into delivery of shares of Common Stock only on conversion of Series B Preferred Stock pursuant hereto. As promptly as practicable, and in any event within three Business Days after the surrender of such certificate or certificates and the receipt of such notice relating thereto and, if it withdraws its election applicable, payment of all transfer taxes (or the demonstration to the satisfaction of the Corporation that such taxes have been paid), the Corporation shall deliver or cause to be delivered (i) certificates registered in the name of such holder representing the number of validly issued, fully paid and nonassessable full shares of Common Stock to which the holder of shares of Series B Preferred Stock so converted shall be entitled and (ii) if less than the full number of shares of Series B Preferred Stock evidenced by the surrendered certificate or certificates are being converted, a new certificate or certificates, of like tenor, for the number of shares evidenced by such surrendered certificate or certificates less the number of shares converted. Such conversion shall be deemed to have its Notes repurchased been made at the close of business on the date of receipt of such notice and of such surrender of the certificate or certificates representing the shares of Series B Preferred Stock to be converted so that the rights of the holder thereof as to the shares being converted shall cease except for the right to receive shares of Common Stock and any declared but unpaid dividends in connection with accordance herewith, and the person entitled to receive the shares of Common Stock shall be treated for all purposes as having become the record holder of such Prepayment Offer or Change shares of Control OfferCommon Stock at such time.
(e) Notwithstanding any other provisions of this Certificate of Designation, shares of Series B Preferred Stock may be converted at any time and, if subject to exchange, up to the close of business on the last Business Day immediately preceding the date fixed for such exchange of such shares.
(f) In connection with the event conversion of any shares of Series B Preferred Stock, no fractions of shares of Common Stock shall be issued, but in lieu thereof the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to such fractional interest multiplied by the Current Market Price per share of Common Stock on the day on which such shares of Series B Preferred Stock are deemed to have been converted.
(g) In case at any time or from time to time the Corporation shall pay any dividend or make any other distribution to the holders of its Common Stock, or shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or any other right, or there shall be any capital reorganization or reclassification of the Common Stock of the Corporation or consolidation or merger of the Corporation with or into another corporation, or any sale or conveyance to another corporation of the property of the Corporation as an entirety or substantially as an entirety, or there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Corporation, then, in any one or more of said cases the Corporation shall give at least twenty (20) days' prior written notice (the time of mailing of such notice shall be deemed to be the time of giving thereof) to the registered holders of the Series B Preferred Stock at the addresses of each as shown on the books of the Corporation of the date on which (i) the books of the corporation shall close or a record shall be taken for such stock dividend, distribution or subscription rights or (ii) such reorganization, reclassification, consolidation, merger, sale or conveyance, dissolution, liquidation or winding up shall take place, as the case may be, provided that any Holder notified the Company (1) in the case of an Optional Conversion pursuant any Transaction to Section 12.01(a), which paragraph (c) applies the Corporation shall give at any time beginning on least thirty (30) days' prior written notice as aforesaid. Such notice shall also specify the date as of which the holders of the provision Common Stock and of the Optional Conversion Notice and ending with the effectiveness Series B Preferred Stock of record shall participate in said dividend, distribution or subscription rights or shall be entitled to exchange their Common Stock or Series B Preferred Stock for securities or other property deliverable upon such Optional Conversionreorganization, and (2) reclassification, consolidation, merger, sale or conveyance, or participate in such dissolution, liquidation or winding up, as the case may be.
(h) Whenever the number of a Mandatory Conversion pursuant shares of Common Stock into which each share of Series B Preferred Stock is convertible (or the number of votes to which each share of Series B Preferred Stock is entitled) is adjusted as provided in Section 12.01(b)8 hereof, at any time beginning with the date Corporation shall promptly mail to the holders of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% record of the outstanding shares of Common Series B Preferred Stock or otherwise be deemed to be an “affiliate” at their respective addresses as the same shall appear in the Corporation's stock records a notice stating that the number of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon into which the shares of Series B Preferred Stock are convertible has been adjusted and setting forth the new number of shares of Common Stock (or describing the new stock, securities, cash or other property) into which each share of Series B Preferred Stock is convertible, as a result of such conversion.
(f) At the request of any Holderadjustment, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” a brief statement of the Company for purposes of facts requiring such adjustment and the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)computation thereof, and when such adjustment became effective.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Urs Corp /New/), Securities Purchase Agreement (Urs Corp /New/)
Conversion. (a) At any time following Subject to the receipt provisions of Article 11 of the Required Stockholder Approval and the effectiveness Indenture, a Holder of the Charter Amendment, Holders of the Notes shall have the right a Debenture may convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, such Debenture prior to the earliest Effective Time into shares of Common Stock of the Company if any of the conditions specified in paragraphs(a) through (1e) of Section 11.01 of the Indenture is satisfied, and subject to the provisions of Article 11A of the Indenture, a Holder of a Debenture may convert such Debenture from and after the Effective Time into the Cash Conversion Amount in cash and WPP ADSs representing a number of WPP Ordinary Shares equal to the Stock Conversion Amount divided by the Conversion Price; provided, however, that if applicable, with respect to a Note such Debenture is called for redemption, the close of business conversion right will terminate on the second Business Day immediately preceding the Redemption Date or of such Debenture (2) unless the Company shall default in making the redemption payment when due, in which case the conversion right shall terminate at the close of business on the Business Day immediately preceding date such Default is cured and such Debenture is redeemed). The initial conversion price prior to the Maturity Date, into Effective Time is $961.20 per share of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules initial conversion price from and regulations promulgated thereunder) in excess of 9.99% of after the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate Effective Time is $8.84 per WPP Ordinary Share, subject to adjustment pursuant to Section 12.06.
(b) Following under certain circumstances as described in the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert Indenture (the “Mandatory Conversion”) any outstanding Notes into a "CONVERSION PRICE"). The number of shares of Common Stock per $1,000 issuable upon conversion of a Debenture prior to the Effective Time is determined by dividing the principal amount of Notes equal Debentures converted by the Conversion Price in effect on the conversion date. The number of WPP Ordinary Shares represented by WPP ADSs issuable upon conversion of a Debenture from and after the Effective Time is determined by dividing (a) the Stock Conversion Amount by (b) the Conversion Price in effect on the conversion date. In the event of a conversion of a Debenture prior to the Effective Time, the Company has the option, in lieu of delivering shares of Common Stock, to pay the Holder surrendering such Debenture an amount of cash determined in accordance with Section 11.02 of the Indenture. Upon conversion, no adjustment for interest (including Contingent Interest and Additional Amounts, if any), or dividends will be made. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon (i) if conversion occurs prior to the Effective Time, the current Market Price (as defined in the Indenture) of the Common Stock on the last trading day prior to the date of conversion and (ii) if conversion occurs from and after the Effective Time, the current WPP Market Price (as defined in the Indenture) of WPP ADSs on the last trading day prior to the date of conversion. To convert a Debenture, a Holder must (a) complete and sign the irrevocable conversion notice set forth below (copies of which may also be obtained from the Conversion Agent) and deliver such notice to the Conversion Rate then Agent, (b) surrender the Debentures by delivering them to the Conversion Agent, at the office or agency maintained for such purpose in effect the Borough of Manhattan, The City of New York, (plus c) furnish appropriate endorsements and transfer documents if required by the Registrar or the Conversion Agent, (d) pay any transfer or similar tax, if required and (e) if the Debenture is held in book-entry form, complete and deliver to the Depositary appropriate instructions pursuant to the Depositary's book-entry conversion programs. Upon satisfaction of such requirements, the Conversion Agent shall, on behalf of such Holder, immediately convert such Debentures into, prior to the Effective Time, Common Stock (unless the Company has elected to pay cash in lieu of fractional sharesdelivering shares of Common Stock) if and, from and after the Daily VWAP Effective Time, the Cash Conversion Amount and WPP ADSs representing the number of WPP Ordinary Shares described above. If a Holder surrenders a Debenture for conversion between the Common Stock exceeds or is record date for the payment of an installment of interest and the related Interest Payment Date, the Debenture must be accompanied by payment of an amount equal to the Threshold Price in effect interest (including Contingent Interest and Additional Amounts, if any), payable on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business Interest Payment Date on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of the Debenture or portion thereof then converted; provided, however, that no such Note being converted.
(d) If payment shall be required if such Debenture has been called for redemption on a Redemption Date within the period between and including such record date and such Interest Payment Date, or if such Debenture is surrendered for conversion on the Interest Payment Date. A Holder may convert a portion of a Debenture equal to $1,000 or any integral multiple thereof. A Debenture in respect of which a Holder exercises its right has delivered a Holder Change of Control Acceptance Notice exercising the option of such Holder to require the Company to repurchase its Notes pursuant to a Prepayment Offer such Debenture as provided in Section 3.11 or a Change Purchase Acceptance Notice exercising the option of Control Offer such Holder to require the Company to repurchase such Debenture as provided in Section 3.16 of the Indenture may be converted only if such notice of exercise is withdrawn in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date terms of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)."
Appears in 2 contracts
Sources: Second Supplemental Indenture (Grey Global Group Inc), Support Agreement (Grey Global Group Inc)
Conversion. OF LEGACY TERRITORY, LEAD MARKET TERRITORY AND NEXT PHASE TERRITORY TO CBA.
2.1 Bottler, CCR and Company hereby agree that all of the then existing Bottling Agreements in all of the Legacy Territory, Lead Market Territories and Next Phase Territory will automatically be deemed converted to a CBA that amends, restates and supersedes all such Bottling Agreements and covers all such territories (“CBA Conversion”), if all of the transactions contemplated in the Next Phase Territory Transaction Agreement are consummated and any of the following events occur:
(a) At any time following the receipt all of the Required Stockholder Approval and Subsequent Phase Territory Transactions are consummated (in which case the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business CBA Conversion would occur on the Business Day immediately preceding date the Redemption Date or (2) the close last of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03such transactions is consummated); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.or
(b) Following Company is willing to enter into the receipt Subsequent Phase Territory Transactions (and enter into the CBA), and has continued in good faith to engage in discussions with respect thereto with Bottler, on terms and conditions that are consistent with the terms and conditions applicable to the grant of the Required Stockholder Approval and Next Phase Territory (including those contained in the effectiveness Next Phase Territory Transaction Agreement), but Bottler either (i) fails to engage in good faith discussions regarding the Subsequent Phase Territory Transactions on such terms; or (ii) notifies Company in writing that Bottler no longer intends to pursue the acquisition of the Charter Amendment, Subsequent Phase Territory (in which case the CBA Conversion would occur thirty (30) days after the earlier of Bottler’s termination of good faith discussions or Bottler’s delivery of written notice to Company shall convert (that Bottler no longer intends to pursue the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP acquisition of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”Subsequent Phase Territory). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.; or
(c) Interest shall cease all of the Subsequent Phase Territory Transactions are not consummated by January 1, 2020 for any reason other than (i) Company’s or CCR’s failure, on or prior to accrue June 30, 2018, to offer in writing to consummate the Subsequent Phase Territory Transactions on terms and conditions that are consistent with the terms and conditions applicable to the granting of the Next Phase Territory (including those contained in the Next Phase Territory Transaction Agreement), and to enter into the CBA, or (ii) Company’s or CCR’s written withdrawal of such offer prior to consummation of the Subsequent Phase Territory Transactions (in which case the CBA Conversion would occur on January 1, 2020). If any Notes of the events described in Section 2.1(c)(i) or Section 2.1(c)(ii) occur, no CBA Conversion will occur unless otherwise specifically agreed in writing by Company, Bottler and CCR. Notwithstanding the foregoing, Bottler may, in its sole discretion, elect for the CBA Conversion to occur at any time after the date hereof, by delivering written notice of such election to Company no less than thirty (30) days prior to the date such CBA Conversion will become effective.
2.2 In connection with the CBA Conversion as it applies to the Legacy Territory, Company will cause CCR to pay a fee to Bottler in cash (or another mutually agreed form of payment or credit) an amount that is equivalent to 0.5X EBITDA solely with respect to (i) sales in such Legacy Territory of Beverages (as defined in the CBA) distinguished by trademarks owned by Company or one of its Affiliates or licensed to Company or one of its Affiliates and sublicensed to Bottler, and (ii) sales in such Legacy Territory of Beverages distinguished by trademarks owned by or licensed to Monster Energy Company (together with its successors or assigns) on which Bottler pays and Company receives a facilitation fee, in each case measured using the twelve month period ending on the date fiscal quarter most recently completed on or immediately prior to the CBA Conversion which amount shall be payable at the time the CBA Conversion occurs. No amounts will be paid or credited with respect to conversion of Bottling Agreements with respect to Lead Market Territories or the Next Phase Territory.
2.3 Upon occurrence of the Optional Conversion or CBA Conversion, Bottler, Company and CCR will execute the Mandatory Conversion CBA and take all other actions necessary to implement the CBA. Without limiting the foregoing, Bottler and Company acknowledge that certain Bottling Agreements are held by Piedmont Coca-Cola Bottling Partnership, a general partnership between Bottler and Company (such date, the “Conversion DatePiedmont Bottling”), and by CCBC of Wilmington, Inc. (“CCBC Wilmington”), which is a wholly owned subsidiary of Piedmont Bottling. The accrued Company and unpaid interest on Bottler will take such actions as are reasonably necessary to implement the CBA Conversion with respect to any Note being converted pursuant Bottling Agreements held by Piedmont Bottling or CCBC Wilmington, including the execution by such entities of a CBA for their respective territories and the payment to an Optional Conversion or Mandatory Conversion shall be added such entities by Company of the payment described in Section 2.2 with respect to the principal amount CBA Conversion of such Note being convertedBottling Agreements.
(d) If a Holder exercises 2.4 Bottler may, in its right sole discretion, elect for the Bottling Agreements in the Exchange Territory to require the Company to repurchase its Notes pursuant convert to a Prepayment Offer or a Change CBA that amends, restates, and supersedes such Bottling Agreements by giving Company and CCR at least thirty (30) days prior written notice of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in election. In connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into cause CCR to pay a Registration Rights Agreement covering fee to Bottler in cash (or another mutually agreed form of payment) an amount that is equivalent to 0.5X EBITDA for such Exchange Territory measured using the shares of Common Stock received upon twelve month period ending on the fiscal quarter most recently completed on or immediately prior to such conversionconversion which amount shall be payable at the time such conversion occurs.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Territory Conversion Agreement (Coca Cola Bottling Co Consolidated /De/)
Conversion. (ai) At any time following the receipt All or a portion of the Required Stockholder Approval unpaid principal amount outstanding on this Note may be converted on a one-time basis into shares of Stock at the option of Payee, in Payee’s sole and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notesabsolute discretion, at any time during the period either (A) commencing on the six-month anniversary of this Note and from time ending 30 days after such six-month anniversary or (B) if Maker elects to time, on any Business Day, prepay this Note in accordance with the terms of Section 7 hereof prior to the earliest six-month anniversary of this Note, commencing on the date of Payee’s receipt of notice of Maker’s intention to prepay this Note and ending 30 days thereafter, each in accordance with the procedure set forth in this Section 4(b).
(ii) If Payee desires to convert all or a portion of the unpaid principal amount outstanding of this Note, the Payee shall deliver to Maker a Conversion Notice specifying the principal amount of the Note then outstanding that Payee elects to convert into shares of Stock (the “Conversion Amount”).
(iii) Within five Business Days after receipt of a Conversion Notice in accordance with Section 4(b)(ii) (or as soon thereafter as Issuer’s transfer books are open for issuance of new shares of Stock), Maker shall (A) cause to be issued in the name of Payee, the number of shares of Stock equal to the quotient (rounded down to the nearest whole share of Stock) obtained by dividing (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or Conversion Amount by (2) the close of business Conversion Price in effect on the Business Day immediately preceding date that Maker received such Conversion Notice, and (B) pay to Payee an amount in cash equal to the Maturity Dateproduct (rounded up to the nearest whole $.01) obtained by multiplying (1) FIVE HUNDRED THOUSAND and NO/100 UNITED STATES DOLLARS ($500,000.00) by (2) a fraction, into Common Stock, at a the numerator of which is the Conversion Amount and the denominator of which is TWO MILLION and NO/100 UNITED STATES DOLLARS ($2,000,000.00).
(iv) Upon conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 any principal amount of the Notes (plus cash in lieu of fractional Note into shares of Common Stock, Payee shall receive such Stock in accordance with Section 12.03); provided that any Holder full and complete discharge and satisfaction of Notes who would beneficially own (as determined in accordance with Section 13(d) all obligations and liabilities of the Exchange Act Maker with respect to such converted portion of this Note (including outstanding principal converted into shares of Stock, interest thereto and any other amounts thereto), such converted portion of this Note shall be terminated and of no further force and effect immediately upon such conversion and the rules remaining Installment Payments shall be reduced proportionately. Payee shall cooperate and regulations promulgated thereundertake such action and execute any documents as may be requested by Maker in order to carry out the provisions and purposes of the preceding sentence. Payee hereby waives any and all demands, claims, suits, actions, causes of action, proceedings, assessments and rights in respect of (i) the portion of this Note that is converted into shares of Stock, including any rights arising from any past or present actual or alleged default or event of default relating to the portion of this Note that is converted into Stock, (ii) amounts otherwise paid or deemed to be paid under, this Note, (iii) amounts paid, or deemed to have been paid or forgiven under this Note, including any rights arising from any past or present actual or alleged default or event of default relating to the amounts paid or deemed to have been paid or forgiven under this Note, and (iv) any principal or interest payments in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06amounts as provided herein and hereunder.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Subordination Agreement (Digerati Technologies, Inc.)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentSubject to compliance with Section 10.02, Holders of the Notes a Holder shall have the right to convert all or any portion (the if such portion is $1,000 principal amount or an integral multiple of $1,000 principal amount) of its Securities (“Optional Conversion”) their outstanding Notes), at any time and from time to time, on any the date of issuance until the Close of Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) maturity date of the close of business on the Business Day immediately preceding the Maturity DateSecurities, into a number of shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal amount of Securities being converted equal to the Notes Conversion Rate then in effect (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.0310.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the The Company shall convert the Securities (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes Securities equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) shares of Common Stock in accordance with Section 10.03), if the Daily VWAP of the Common Stock (or other security into which the Securities are convertible pursuant to Section 10.11) exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 10 Trading Days (whether or not consecutive) during any period of 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the NotesSecurities, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open Open of business Business on the second business day Business Day following such the Mandatory Conversion Event, which notice shall specify that the date on which the Mandatory Conversion shall occur occur, which shall not be later than the third business day fifth Business Day following the notice of the Mandatory Conversion EventEvent (the “Mandatory Conversion Date”). Notwithstanding the foregoing, a Mandatory Conversion shall not occur unless, as evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent (if other than the Trustee) on the Mandatory Conversion Date, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing on, and including, the date of the Mandatory Conversion Notice and (y) ending on, and including, the Mandatory Conversion Date (the “Equity Conditions Measuring Period”):
(i) either (1) all shares of Common Stock issuable upon conversion of the Securities and held by a non-Affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the shares of Common Stock issuable upon conversion of the Securities shall have been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such shelf registration statement to remain effective and available for use from the Mandatory Conversion Date until a date that is at least thirty days following the Mandatory Conversion Date;
(ii) the Common Stock deliverable upon conversion is listed or traded on The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, or any of their respective successors (each, an “Eligible Market”) and shall not then be suspended from trading on such Eligible Market;
(iii) at or prior to the Mandatory Conversion Date, for any Securities validly surrendered for Optional Conversion on or prior to the date of the Mandatory Conversion Notice in accordance with the terms of this Indenture, the Company shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of those Securities to the applicable Holders in accordance with Section 10.01(a);
(iv) any shares of Common Stock to be issued upon conversion may be issued without violating the rules or regulations of The New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is or are then listed or trading; and
(v) no Event of Default shall have occurred and be continuing. The Company shall use its reasonable best efforts to keep the registration statement described under Section 10.01(b)(i) above effective and available for use for at least 30 days following the Mandatory Conversion Date.
(c) Interest shall cease to accrue on any Notes Securities on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “applicable Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or Securities in connection with the occurrence of a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively4.09, such Holder may convert its Notes Securities into Common Stock only if it withdraws its election to have its Notes Securities repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In and converts its Securities prior to the event that any Holder notified the Company (1) in the case Close of an Optional Conversion pursuant to Section 12.01(a), at any time beginning Business on the date of Business Day immediately preceding the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionapplicable repurchase date.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Conversion. (a) At any time following In the receipt event of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Trigger Event, the Company shall deliver notice Second Tranche Securities are mandatorily and irrevocably convertible into newly issued Common Shares at the Conversion Price. Conversion Price: Means, if the Common Shares are (a) then admitted to trading on a Relevant Stock Exchange, the higher of: (i) the Current Market Price (as set forth in the preliminary prospectus supplement) of a Common Share (converted into U.S. dollars at the Prevailing Rate); (ii) the Floor Price, subject to the adjustments in accordance with “Description of Contingent Convertible Capital Securities—Conversion Upon Trigger Event—Anti-Dilution Adjustment of the Floor Price” in the Prospectus; and (iii) the nominal value of a Common Share (converted into U.S. dollars at the Prevailing Rate) (being EUR0.50 on the Settlement Date); in each case on the Trigger Event Notice Date; or (b) not then admitted to trading on a Relevant Stock Exchange, the higher of (ii) and (iii) above. For the avoidance of doubt, the conversion into U.S. dollars at the Prevailing Rate described above shall in no circumstances imply that any Common Share will be issued at a price of less than its nominal value expressed in the Share Currency. Floor Price: USD Floor price: USD 2.570 per common Share, approx. 66% of share price at November 13, 2023 closing. (EUR 3.650; exchange rate of 1.067 EUR/USD, November 13, 2023.) Pre-emptive Rights: The Second Tranche Securities do not grant holders of the Second Tranche Securities pre-emption rights in respect of any possible future issues of Parity Securities or any other securities by Banco Santander or any Subsidiary. Waiver of Set-Off: Subject to applicable law, neither any holder or beneficial owner of the Second Tranche Securities nor the Trustee acting on behalf of the holders of the Second Tranche Securities may exercise, claim or plead any right of set-off, compensation, netting, or retention in respect of any amount owed to it by Banco Santander in respect of, or arising under, or in connection with, the Second Tranche Securities or the Base Indenture and the First Supplemental Indenture and each holder and beneficial owner of the Second Tranche Securities, by virtue of its holding of any Second Tranche Securities or any interest therein, and the Trustee acting on behalf of the holders of the Second Tranche Securities, shall be deemed to have waived all such rights of set-off, compensation, netting, retention or counterclaim. If, notwithstanding the above, any amounts due and payable to any holder or beneficial owner of a Security or any interest therein by Banco Santander in respect of, or arising under, the Second Tranche Securities are discharged by set-off, such holder or beneficial owner shall, subject to applicable law, immediately pay an amount equal to the amount of such discharge to Banco Santander (or, if a Liquidation Event shall have occurred, the liquidator or administrator of Banco Santander, as the case may be) and, until such time as payment is made, shall hold an amount equal to such amount in trust (where possible) or otherwise for Banco Santander (or the liquidator or administrator of Banco Santander, as the case may be) and, accordingly, any such discharge shall be deemed not to have taken place. Enforcement Events and Remedies: There are no events of default under the Second Tranche Securities. In addition, under the terms of the Base Indenture, as amended and supplemented by the First Supplemental Indenture, neither the Trigger Conversion nor the exercise of the Bail-in Power or the exercise of a resolution tool or a resolution power by the Relevant Resolution Authority or any action in compliance therewith will be an Enforcement Event. The Second Tranche Securities are perpetual securities in respect of which there is no fixed redemption date or maturity date. Holders of the NotesSecond Tranche Securities may not require any redemption of the Second Tranche Securities at any time. U.S. Federal Income Tax Considerations: For a discussion of the material U.S. federal income tax considerations for the ownership and disposition of the Second Tranche Securities by U.S. investors, see “Taxation—U.S. Federal Income Tax Considerations—Taxation of Contingent Convertible Capital Securities” in the preliminary prospectus supplement and the Prospectus. That discussion does not describe all of the tax consequences that may be relevant in the light of a U.S. investor’s particular circumstances. Listing: New York Stock Exchange Trustee and Principal Paying Agent and Calculation Agent: The Bank of New York Mellon, London Branch Governing Law: New York law, except that the authorization and execution by Banco Santander, S.A. of the Base Indenture, First Supplemental Indenture and the Second Tranche Securities and certain provisions of the Second Tranche Securities, the Trustee Base Indenture and the Conversion Agent First Supplemental Indenture related to the subordination of the Second Tranche Securities, as well as the price at which Second Tranche Securities can be issued, certain minimum requirements with respect to the conversion price and the legal regime applicable for the exclusion of the pre-emptive rights shall be governed and construed in accordance with Spanish Law. Risk Factors: Investors should read the Risk Factors in the preliminary prospectus supplement dated November 15, 2023. Selling Restrictions: Canada, EEA, United Kingdom, Hong Kong, Italy, Japan, People’s Republic of China (if excluding Hong Kong, Macau and Taiwan), Republic of Korea, Taiwan, Singapore, Switzerland and Australia. No publicity or marketing nor public offering which requires the registration of a prospectus in Spain. The Second Tranche Securities are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the EEA and in the United Kingdom, as per the preliminary prospectus supplement. Conflict of Interest: Santander US Capital Markets LLC is a subsidiary of Banco Santander, S.A. Therefore, Santander US Capital Markets LLC is deemed to have a “conflict of interest” under FINRA Rule 5121 and, accordingly, the offering of the Second Tranche Securities will comply with the applicable requirements of FINRA Rule 5121. CUSIP / ISIN: 05971K AQ2 / US05971KAQ22 Sole Global Coordinator: Santander US Capital Markets LLC Joint Bookrunners: BNP Paribas Securities Corp. BofA Securities, Inc. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. HSBC Securities (USA) Inc. ▇.▇. ▇▇▇▇▇▇ Securities LLC RBC Capital Markets, LLC Santander US Capital Markets LLC Co-Leads: Caixa – Banco de Investimento, ▇.▇. ▇▇▇▇ Securities USA, Inc. SEB Securities, Inc. TD Securities (USA) LLC * Any ratings obtained will reflect only the views of the respective rating agency and should not be considered a recommendation to buy, sell or hold the Second Tranche Securities. The ratings assigned by the rating agencies are subject to revision or withdrawal at any time by such rating agencies in their sole discretion. Each rating should be evaluated independently of any other than rating. ** It is expected that delivery of the Trustee) Second Tranche Securities will be made against payment therefore on or about November 21, 2023, which is the third day following the date hereof (such noticesettlement cycle being referred to as “T+3”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, a “Mandatory Conversion Notice”) not later than as amended, trades in the open of secondary market are generally required to settle in two business on days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Second Tranche Securities prior to the second business day following such Mandatory Conversion Eventprior to the settlement date will be required, which notice shall specify by virtue of the fact that the Mandatory Conversion shall occur not later than Second Tranche Securities initially settle in T+3, to specify an alternative settlement cycle at the third business day following time of any such trade to prevent failed settlement and should consult their own advisors. Banco Santander has filed a registration statement (including a base prospectus and a related preliminary prospectus supplement) with the notice U.S. Securities and Exchange Commission (SEC) for this offering. Before you invest, you should read the preliminary prospectus supplement, the base prospectus in that registration statement, and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by searching the SEC online database (▇▇▇▇▇®) at ▇▇▇.▇▇▇.▇▇▇. Alternatively, you may obtain a copy of the Mandatory Conversion Eventbase prospectus and the preliminary prospectus supplement from BNP Paribas Securities Corp. by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇, BofA Securities, Inc. by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇, Citigroup Global Markets Inc. by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇, Deutsche Bank Securities Inc. by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇, HSBC Securities (USA) Inc. by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇, ▇.
(c) Interest shall cease to accrue on any Notes on ▇. ▇▇▇▇▇▇ Securities LLC by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇, RBC Capital Markets, LLC by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇ and Santander US Capital Markets LLC by calling toll free ▇-▇▇▇-▇▇▇-▇▇▇▇. Capitalized terms used but not defined in this term sheet have the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) meanings set forth in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on base prospectus as supplemented by the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionpreliminary prospectus supplement.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following Each holder may convert the receipt notes into common shares of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, Lions Gate at a conversion rate (the “Conversion Rate”) of 81.2 _____ common shares per $1,000 principal amount of notes, subject to adjustment, before the Notes (plus cash in lieu close of fractional business on the trading day immediately before the maturity date, unless the notes have been previously redeemed or repurchased, under any of the following circumstances during the periods specified: - if, on or before October 15, 2019, the closing price of the common shares of Common Stock Lions Gate for at least 20 trading days in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) the 30 consecutive trading day period ending on the eleventh trading day of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99preceding fiscal quarter exceeds 120% of the outstanding then-current conversion price in effect, then the holder will have the right to convert its notes until the eleventh trading day of the immediately following fiscal quarter; - if, on any trading day after October 15, 2019, the closing sale price of the common shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt Lions Gate exceeds 120% of the Required Stockholder Approval and then-current conversion price in effect, then the effectiveness holder will have the right to convert its notes at all times thereafter until the close of business on the Charter Amendmenttrading day immediately before the maturity date; - if, at any time on or before October 15, 2019, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock trading price per $1,000 principal amount of Notes equal to notes for each trading day of any five consecutive trading-day period was less than 98% of the Conversion Rate product of the closing sale price of the common shares of Lions Gate and the conversion rate then in effect (plus cash in lieu of fractional shares) if effect, then the Daily VWAP of holder will have the Common Stock exceeds or is equal right to convert its notes until the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open close of business on the second business fifth trading day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day immediately following the notice conclusion of any such five consecutive trading-day period; - if U.S. Lions Gate calls the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such dateholder's notes for redemption, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to holder will have the principal amount of such Note being converted.
(d) If a Holder exercises its right to require convert the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on notes called for redemption from the date of the provision notice of redemption until the close of business on the trading day immediately before the redemption date, after which time the holder's right to convert will expire unless U.S. Lions Gate defaults in the payment of the Optional Conversion Notice and redemption price; - if Lions Gate distributes to all or substantially all holders of its common shares, rights, options or warrants entitling them to purchase its common shares at a price less than the average closing sale price of the common shares of Lions Gate for the ten trading days ending with on the effectiveness of such Optional Conversiontrading day immediately before the declaration date, and (2) the holder will have the right to convert its notes until a specified date unless it can participate in the case distribution without converting its notes; or - if Lions Gate distributes to all holders of its common shares, cash or other assets, debt securities or rights to purchase its securities, which distribution has a Mandatory Conversion pursuant per common share value exceeding 5% of the closing sale price of its common shares on the trading day immediately before the declaration date for such distribution, the holder will have the right to Section 12.01(bconvert its notes until a specified date unless it can participate in the distribution without converting its notes. In addition, if Lions Gate or U.S. Lions Gate becomes a party to a consolidation, merger, binding share exchange or sale or conveyance of all or substantially all of its property and assets that constitutes a "designated event" (a change in control (as defined) or a termination of trading), at any time or such an event occurs that would have been a change in control but for certain exceptions, then the holder will have the right to convert its notes beginning with 15 days before the date announced by Lions Gate or U.S. Lions Gate, as the case may be, as the anticipated effective date of the Mandatory Conversion Event transaction until and ending 30 calendar including the date which is 15 days following after the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) actual effective date of the Exchange Act and transaction. Under certain circumstances, the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise holder will also be deemed entitled to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange receive a make whole premium upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionchange in control.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Credit Agreement (Lions Gate Entertainment Corp /Cn/)
Conversion. Subject to the provisions of Article X of the Indenture, a Holder of a Note may convert such Note into shares of Class A Common Stock of the Company if any of the conditions specified in paragraphs (a) At any time following the receipt through (e) of Section 10.01 of the Required Stockholder Approval and the effectiveness of the Charter AmendmentIndenture is satisfied; provided, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Noteshowever, at any time and from time to time, on any Business Day, prior to the earliest of (1) that if applicable, with respect to a such Note is called for redemption, the conversion right will terminate at the close of business on the second Business Day immediately preceding before the Redemption Date or of such Note (2) unless the Company shall default in making the redemption payment when due, in which case the conversion right shall terminate at the close of business on the Business Day immediately preceding date such Default is cured and such Note is redeemed). The initial conversion price is $34.51 per share, subject to adjustment under certain circumstances as described in the Maturity Indenture (the "Conversion Price"). The number of shares issuable upon conversion of a Note ---------------- is determined by dividing the principal amount converted by the Conversion Price in effect on the Conversion Date, into Common Stock, at . In the event of a conversion rate of a Note in a Principal Value Conversion, the Company has the option to deliver cash and/or Class A Common Stock to the Holder of the Note surrendered for such conversion as provided in Section 10.02 of the Indenture. Upon conversion, no adjustment for interest, if any (including contingent interest, if any), or dividends will be made. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the “Conversion Rate”current market price (as defined in the Indenture) of 81.2 shares per $1,000 the Common Stock on the last Trading Day prior to the date of conversion. To convert a Note, a Holder must (a) complete and sign the conversion notice set forth below and deliver such notice to the Conversion Agent, (b) surrender the Note to the Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by the Registrar or the Conversion Agent, (d) pay any transfer or similar tax, if required and (e) if the Note is held in book-entry form, complete and deliver to the Depositary appropriate instructions pursuant to the Depositary's book-entry conversion programs. If a Holder surrenders a Note for conversion between the record date for the payment of an installment of interest and the next interest payment date, the Note must be accompanied by payment of an amount equal to the interest (including contingent interest, if any) and Liquidated Damages, if any, payable on such interest payment date on the principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03)Note or portion thereof then converted; provided provided, however, that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of no such Holder’s Notes payment shall be required if such Note has been called for redemption on a Redemption Date within the period between and including such record date and such interest payment date, or if such Note is surrendered for conversion on the interest payment date. A Holder may convert a portion of a Note equal to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount or any integral multiple thereof. A Note in respect of Notes equal to which a Holder has delivered a Purchase Notice or a Change of Control Repurchase Notice exercising the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount option of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer such Note as provided in Section 3.08 or a Change Section 3.09, respectively, of Control Offer the Indenture may be converted only if such notice of exercise is withdrawn as provided above and in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date terms of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following Subject to the receipt next two succeeding sentences, a Holder of a Security may convert this Security for Common Stock of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, Company at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note maturity. If this Security is called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) Holder may convert it at any time before the close of business on the Business last Trading Day immediately preceding prior to the Maturity Redemption Date, into . A Security in respect of which a Holder has delivered a notice of exercise of the option to require the Company to repurchase such Security or to repurchase such Security in the event of a Fundamental Change may be converted only if the notice of exercise is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is _______ shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal Principal Amount, subject to adjustment in certain events described in the Indenture. The Company will deliver Cash or a check in lieu of any fractional share of Common Stock. The Holders' right to convert Securities into shares of Common Stock is subject to the Company's right to elect to instead pay such Holder the amount of Cash set forth in the Notes next succeeding sentence in lieu of delivering such shares of Common Stock; PROVIDED, HOWEVER, that if such payment of Cash is not permitted pursuant to the provisions of the Indenture or the provisions of any other agreement or instrument to which the Company is a party or by which it is bound or otherwise, the Company shall deliver shares of Common Stock (plus cash and Cash in lieu of fractional shares of Common Stock Stock) in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) Article 11 of the Exchange Act and Indenture, whether or not the rules and regulations promulgated thereunder) Company has delivered a notice pursuant to Section 11.02 to the effect that the Securities will he paid in excess Cash. The amount of 9.99% Cash to he paid for each $1,000 Principal Amount of a Security shall be equal to the outstanding Sale Price of a share of Common Stock on the Trading Day immediately prior to the related Conversion Date multiplied by the Conversion Rate in effect on such Trading Day. The Company shall not pay Cash in lieu of delivering shares of Common Stock upon the conversion of such Holder’s Notes shall be required to provide 61 days’ written notice any Security pursuant to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt terms of Article 11 of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert Indenture (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash other than Cash in lieu of fractional shares) if there has occurred (prior to, on or after, as the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventcase may be, the Conversion Date or the date on which the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the delivers its notice of the Mandatory Conversion Event.
(c) Interest whether each Security shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being he converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise Cash) and is continuing an Event of Default (other than a default in such payment on such Securities), provided, however, that this sentence shall not apply in the event that an Event of Default occurs after such Cash is paid. In the event the Company exercises its option pursuant to Section 12.01 of the Indenture to have interest in lieu of Original Issue Discount accrue on the Security following a Tax Event, the Holder will be entitled on conversion to receive the same number of shares of Common Stock such Holder would have received if the Company had not exercised such option. If the Company exercises such option, Securities surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business of such Interest Payment Date (except Securities to be redeemed on the next Interest Payment Date) must be accompanied by payment of an amount equal to the interest thereon that the registered Holder is to receive. Except where Securities surrendered for conversion must he accompanied by payment as described above, no interest on converted Securities will he payable by the Company on any Interest Payment Date subsequent to the date of conversion. To convert this Security a Holder must (1) complete and manually sign the conversion notice on the back of this Security (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender this Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar tax, if required. A Holder may convert a portion of this Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the Common Stock except as provided in the Indenture. On conversion of this Security, that portion of accrued Original Issue Discount attributable to the period from the Issue Date to the Conversion Date with respect to the converted portion of this Security shall not be canceled, extinguished or forfeited, but rather shall be deemed to be an “affiliate” paid in full to the Holder thereof through the delivery of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(ftogether with any cash payment in lieu of fractional shares) At in exchange for the request portion of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion this Security being converted pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)the terms hereof.
Appears in 1 contract
Conversion. (a) At any time following Subject to and upon compliance with the receipt provisions of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionIndenture, the close Holder may surrender for conversion all or any portion of business on this Security that is in an integral multiple of $1,000. Upon conversion, the Business Day immediately preceding Holder shall be entitled to receive the Redemption Date or (2) consideration specified in the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of Indenture. No fractional shares share of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock shall be issued upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversiona Security. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentInstead, the Company shall convert (pay a cash adjustment as provided in the “Mandatory Conversion”) any outstanding Notes into a number Indenture. The initial Conversion Rate of the Securities shall be 27.4395 shares of Common Stock per $1,000 principal amount of Notes equal Securities, subject to adjustment in accordance with the provisions of Article 4 of the Indenture. If a Holder converts all or any portion of this Security in connection with the occurrence of certain Fundamental Change transactions, the Conversion Rate then shall be increased in effect (plus cash the manner and to the extent described in lieu of fractional shares) if the Daily VWAP Section 4.06 of the Common Stock exceeds Indenture. Securities surrendered for conversion (in whole or is equal in part) during the period from the close of business on any Regular Record Date to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open opening of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) next succeeding Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion Payment Date shall be added accompanied by payment by the Holders of such Securities in funds to the principal amount of such Note being converted.
(d) If a Holder exercises its right Conversion Agent acceptable to require the Company of an amount equal to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, the interest payable on such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with corresponding Interest Payment Date; provided that no such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company payment need be made: (1) in if the case of Company has called the Securities for redemption on a Redemption Date that falls after a Regular Record Date for an Optional Conversion pursuant Interest Payment Date and on or prior to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and corresponding Interest Payment Date; (2) in the case of connection with a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days conversion following the effectiveness Regular Record Date preceding the Final Maturity Date; (3) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (4) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such conversion, that Security. A Security in respect of which a Holder has submitted a Repurchase Notice or a Fundamental Change Purchase Notice may be converted only if such Holder will beneficially own (as determined validly withdraws such Repurchase Notice or such Fundamental Change Purchase Notice in accordance with Section 13(d) the terms of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following the receipt The principal amount of the Required Stockholder Approval Note, together with all accrued and unpaid interest, due and owing under the effectiveness of the Charter Amendment, Holders of the Notes Note shall have the right convert (the “Optional Conversion”) their outstanding Notes, be convertible at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, or before the close of business on the Business Day Maturity Date (but shall not be convertible on or after the date set forth in a notice of redemption mailed in accordance with Section 3.03 of the Convertible Note Agreement in the case the Note or a portion thereof has been called for redemption pursuant to Section 7 hereof or is subject to repurchase pursuant to Section 10 hereof (unless the Company defaults in making the payment due upon redemption or repurchase, as the case may be)), without the payment of any additional consideration and at the option of the holder hereof, into fully paid and nonassessable shares of the Company’s Common Stock, $.01 par value (the “Common Stock”) at an initial conversion price of $15.58 per share (the “Conversion Price”).
(b) In the event the Note has not been redeemed or repurchased by the Company on the dates indicated below (the “Measurement Dates”), subject to Section 7 and Section 8 hereof, the Conversion Price applicable to the Note shall be adjusted as of and on such Measurement Dates as follows Measurement Date Conversion Price Jan 1 2005 $ 15.31 Apr 1 2005 $ 15.04 Jul 1 2005 $ 14.51 Oct 1 2005 $ 13.97 Jan 1 2006 $ 13.43 Apr 1 2006 $ 12.89 Jul 1 2006 $ 12.36
(c) In order to convert all or any portion of the principal amount of the Note (together with all accrued and unpaid interest thereon) into Common Stock, a Holder shall surrender the Note at the office of the Conversion Agent (as defined in the Convertible Note Agreement), duly endorsed or assigned to the Company in blank, and shall give written notice to the Company at such office of the Holder’s election to convert the Note and shall state therein the amount of the Note being converted. Thereupon the Company shall promptly, and in any event within five business days after delivery of the conversion notice, issue and deliver at such office to the Holder a certificate or certificates for the number of shares of Common Stock to which the Holder shall be entitled. Such conversion shall be deemed to have been made immediately preceding the Redemption Date or (2) prior to the close of business on the Business Day immediately preceding date of such surrender of the Maturity DateNote, into and the person or persons entitled to receive the Common Stock, Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Common Stock on such date. The Company will issue a check in lieu of any fractional share equal to the fair market value of such fractional share as provided in the Convertible Note Agreement. A Holder may convert a portion of a Note if the portion is at a conversion rate (the “Conversion Rate”) least $1,000 of 81.2 shares per principal amount or an integral multiple of $1,000 principal amount. If a Holder submits for conversion less than the entire principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendmenta Note, the Company shall convert (promptly issue and deliver a new Note in the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount remaining owing hereunder and in the form of such the Note being convertedso exchanged.
(d) If a Holder exercises its right The Conversion Price and the securities to require be acquired on conversion of the Company Note is subject to repurchase its Notes pursuant to a Prepayment Offer adjustment in the event of certain events such as stock splits, distributions, stock dividends, recapitalizations, reorganizations, acquisitions, or a Change of Control Offer reverse stock splits as provided in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offerthe Convertible Note Agreement.
(e) In The Common Stock issued upon conversion of this Note shall bear a restrictive legend until after the event that second anniversary of the later of the date hereof and the last date on which the Company or any Holder notified affiliate of the Company (1) as such term is defined in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on Securities Act) was the date of the provision of the Optional Conversion Notice and ending with the effectiveness owner of such Optional Conversion, and shares or the Note from which such shares were converted (2or such shorter period of time as permitted by Rule 144(k) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of under the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionor any successor provision thereunder).
(f) At The Common Stock issuable upon conversion of this Note is subject to additional restrictions on transfer as set forth in the request Investor Rights Agreement, dated July 27, 2004, a copy of any Holder, which is on file with and which may be obtained from the Company will use its reasonable efforts (the “Investor Rights Agreement”). By accepting this Note the Holder agrees to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of bound by the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Investor Rights Agreement.
Appears in 1 contract
Sources: Convertible Note Agreement
Conversion. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, the Lenders with Bridge Loan Commitments hereby agree as follows:
(ai) At any time following on the receipt Conversion Date, so long as no Conversion Default has occurred and is continuing, upon the request of Company, to convert and continue all of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their then outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu Bridge Loans into an equivalent amount of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert senior subordinated unsecured term loans (the “Mandatory Subordinated Loans”). The Lenders’ commitments to convert and continue their Bridge Loans into Subordinated Loans on the Conversion Date under this subsection 2.5 are herein called collectively, the “Subordinated Loan Commitments”;
(ii) In order to convert and continue the Loans as described in clause (i) above, Company shall deliver to the Lenders a notice of conversion (a “Notice of Bridge Loan Conversion”) any outstanding Notes into a number no later than 11:00 A.M. (New York time), at least two Business Days in advance of shares the Conversion Date, which notice of Common Stock per $1,000 conversion shall specify the Conversion Date and the principal amount of Notes equal the Bridge Loans outstanding on the Conversion Date to be converted into Subordinated Loans. If Company does not deliver to Administrative Agent at least two Business Days prior to the Conversion Rate Bridge Loan Maturity Date written notice that it intends to repay the Bridge Loans then outstanding in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds full on or is equal prior to the Threshold Price in effect Bridge Loan Maturity Date, then Company shall be deemed to have delivered a Notice of Bridge Loan Conversion electing to convert all Bridge Loans outstanding into an equivalent amount of Subordinated Loans on each applicable Trading Day for at least 15 consecutive Trading Days the Bridge Loan Maturity Date;
(iii) On the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Date, so long as no Conversion EventDefault has occurred and is continuing, the Company Administrative Agent shall deliver notice to the Holders of the Notes, the Trustee Escrow Agent and the Conversion Subordinated Administrative Agent (if other than that the Trustee) (Bridge Loans are to convert to Subordinated Loans on such noticedate, a “Mandatory Conversion Notice”) not later than and specifying the open aggregate principal amount of business on the second business day Subordinated Loans that will be outstanding immediately following such Mandatory Conversion Event, which notice shall specify that conversion and so as to permit the Mandatory Conversion shall occur not later than Subordinated Administrative Agent to make the third business day following appropriate recordations in the notice of register for the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes Subordinated Loans on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such dateconversion, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the aggregate principal amount of Subordinated Loans that will be held by each Lender immediately following such Note being converted.conversion;
(div) If a Holder exercises its right the conversion of the Bridge Loans into the Subordinated Loans shall be effected by the release of the Subordinated Loan Documents from escrow to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion Subordinated Administrative Agent pursuant to Section 12.01(a), at any time beginning 3(iii) of the Escrow Agreement and the cancellation on the date Register by the Administrative Agent of the provision Bridge Loans in an amount that corresponds to the amount of Subordinated Loans evidenced by the Subordinated Loan Documents so released (which cancellation shall be performed by Administrative Agent substantially concurrently with the release of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion Subordinated Loan Documents from escrow pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d3(iii) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.Escrow Agreement); and
(fv) At the request of any Holder, Subordinated Loans shall be governed by the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Subordinated Loan Documents.
Appears in 1 contract
Conversion. Subject to and upon compliance with the provisions of the Indenture, prior to the Close of Business on December 1, 2023, the Holder of any Security shall have the right, at such Holder's option, to convert the principal amount of the Security, or any portion of such principal amount that is a positive integral multiple of $1,000, into (subject to the Company Cash Conversion Option pursuant to Section 1002 of the Indenture) fully paid and non-assessable Common Shares (as such shares shall then be constituted) at the Conversion Rate in effect at such time, solely upon the occurrence of one or more of the following events:
(a) At commencing after March 31, 2004, Securities may be surrendered for conversion during any time following the receipt fiscal quarter of the Required Stockholder Approval Company (and the effectiveness only during such fiscal quarter), if, as of the Charter Amendment, Holders last Trading Day of the Notes immediately preceding fiscal quarter, the Closing Sale Price for at least twenty (20) Trading Days in the thirty (30) consecutive Trading Day period ending on the last Trading Day of such immediately preceding fiscal quarter exceeds 120% of the Conversion Price in effect on such 30th Trading Day;
(b) the Securities may be surrendered for conversion into Common Shares during the five Business Day period (and only during any such period) following any five consecutive Trading Day period in which the daily average of the Trading Prices for the Securities for such five (5) Trading Day Period was less than 98% of the average Conversion Value for the Securities during such period; provided however, that after December 1, 2018, if on the date of any Conversion pursuant to this condition, the Closing Sale Price of the Common Shares is greater than the Conversion Price per share but less than 120% of the Conversion Price per share, then Holders shall receive, in lieu of Common Shares based on the Conversion Rate, Common Shares , subject to the Company's Cash Conversion Option pursuant to Section 1002 of the Indenture, having a value (determined as provided in the Indenture) equal to the principal amount of such Securities, plus accrued and unpaid interest, if any;
(c) if any Securities have the right convert been called for redemption, such Securities (the “Optional Conversion”and only such Securities) their outstanding Notesmay be surrendered for conversion, at any time and from time to time, on any or after the date the Redemption Notice has been given until the Close of Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, after which time the right to convert shall expire unless the Company defaults in the payment of the Redemption Price; and
(d) upon the occurrence of certain corporate events specified in Section 1001 of the Indenture. Subject to and upon compliance with the provisions of the Indenture, each Security will initially be convertible into 26.5041 fully paid and non-assessable Common StockShares, as said shares shall be constituted at a conversion rate (the “Conversion Rate”) date of 81.2 shares conversion, per $1,000 principal amount of Securities or portion thereof to be converted or such Conversion Rate as adjusted from time to time as provided in the Notes Indenture, upon surrender of this Security, together with a Conversion Notice as provided in the Indenture, to the Conversion Agent and, unless the Common Shares issuable on conversion are to be issued in the same name as this Security, duly endorsed by, or accompanied by instruments of transfer in form satisfactory to the Conversion Agent duly executed by the Holder or by its duly authorized attorney. On or after January 20, 2009, the Company has the option (plus the "COMPANY CASH CONVERSION OPTION") to deliver cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) some or all of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock Shares issuable upon conversion of such Holder’s Notes shall be required to provide 61 days’ written this Security. The Company will give notice to of its election of the Company prior to any such conversion. The Cash Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the Option within two Business Days of its receipt of the Required Stockholder Approval and Holder's Conversion Notice, unless the effectiveness Company has already informed Holders of its election in connection with a Redemption Notice. Such notice shall state (1) the Charter AmendmentCompany's intention to deliver cash in lieu of some or all other Common Shares otherwise deliverable, (2) if a combination thereof, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock Shares per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus Security for which cash will be delivered in lieu of fractional sharesdelivery of such Common Shares and (3) if the Daily VWAP of method for calculating the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right cash to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer be delivered per Common Share. No fractional Common Shares will be issued upon any conversion, but an adjustment and payment in accordance with Section 4.10 or Section 4.15cash will be made, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) as provided in the case Indenture, in respect of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case fraction of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or Share which would otherwise be deemed to be an “affiliate” issuable upon the surrender of the Company any Security for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. Subject to the provisions of the Indenture, unless ---------- previously redeemed, the Notes are convertible (a) At in denominations of (Euro)1.00 principal amount at maturity or integral multiples thereof), at the option of the holder thereof, into Capital Stock of the Company at any time after 365 days following the receipt Issue Date and prior to the maturity date. The number of shares of Capital Stock of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders Company ("Conversion Shares") issuable upon conversion of the Notes shall have is equal to the right convert principal amount of the Notes being converted (on the date of conversion) divided by (Euro)25.00, subject to adjustment as provided in the Indenture (the “Optional Conversion”"Conversion Ratio"). Except as described below, no adjustment will be made on conversion of any Notes for interest accrued thereon or for dividends paid on outstanding Capital Stock of the Company. If Notes not called for redemption are converted (including pursuant to the mandatory conversion feature described below) their outstanding Notes, at any time after a record date for the payment of interest and from time to time, on any Business Day, prior to the earliest next succeeding interest payment date, such Notes must be accompanied by funds equal to the interest payable on such succeeding interest payment date on the principal amount so converted. The Company is not required to issue fractional shares upon conversion of Notes (1including pursuant to the mandatory conversion feature described below) if applicableand, with respect in lieu thereof, will pay a cash adjustment based upon the Closing Price on the Neuer Markt of the Common Stock on the last Trading Day prior to a Note the day of conversion. In the case of Notes called for redemption, conversion rights will expire at the close of business on the Business Trading Day immediately next preceding the Redemption Date or (2) date fixed for redemption, unless the close Company defaults in payment of business the redemption price. In addition, if the closing price on the Business Day immediately preceding Neuer Markt of the Maturity DateCommon Stock during any period described below has exceeded the price for such period referred to below for at least 30 consecutive Trading Days ("Market Criteria," with the 30-day period being referred to as the "Market Criteria Period"), into Common Stockand the Conversion Shelf Registration Statement described in paragraph 2 hereof is effective and available, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount all of the Notes (plus cash in lieu will be automatically converted into that number of fractional shares Conversion Shares derived by application of the Conversion Ratio; provided, however, that if the Market Criteria is satisfied during the first year after the Closing Date, the conversion will not occur until the one-year anniversary of the Closing Date and will occur only if the closing price on the Neuer Markt of the Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own is at least (as determined in accordance with Section 13(d) Euro)32.00 on such date: Closing ------- 12 Months Beginning Price -------------------- ----- August 15, 1999 (Euro)32.00 August 15, 2000 (Euro)38.46 August 15, 2001 (Euro)44.92 August 15, 2002 (Euro)51.37 August 15, 2003 (Euro)57.83 The denominator of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate Ratio is subject to adjustment pursuant to as provided in Section 12.06.
(b) Following the receipt 10.5 of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion EventIndenture.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Indenture (Cybernet Internet Services International Inc)
Conversion. (a) At any time following the receipt Each Holder of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Preferred Stock shall have the right convert (the “Optional Conversion”) their outstanding Notesat any time, at any time and from time its option, to timeconvert, on any Business Day, prior subject to the earliest terms and provisions of (1) if applicablethis Section 8, with respect to a Note called for redemption, the close any or all of business on the Business Day immediately preceding the Redemption Date or (2) the close such Holder’s shares of business on the Business Day immediately preceding the Maturity Date, into Common Stock, Preferred Stock at a an initial conversion rate of 81.18 shares of fully paid and nonassessable shares of Common Stock (subject to adjustment as provided in this Section 8, the “Conversion Rate”) per share of 81.2 Preferred Stock (subject to the limitations set forth in Section 11); provided, however, that, prior to the receipt of Shareholder Approval, shares per $1,000 principal amount of Preferred Stock shall not be convertible pursuant to this Section 8 in the aggregate into more than 19.99% of the Notes shares of Common Stock outstanding on the Issue Date (plus subject to appropriate adjustment in the event of a stock split, stock dividend, combination or other similar recapitalization) (such limitation, the “Conversion Cap”). Upon conversion of any share of Preferred Stock, the Company shall deliver to the converting Holder, in respect of each share of Preferred Stock being converted, a number of shares of Common Stock equal to the Conversion Rate, together with a cash payment in lieu of any fractional shares share of Common Stock in accordance with Section 12.03); provided that 10, on the third Business Day immediately following the relevant Conversion Date.
(b) Before any Holder shall be entitled to convert a share of Notes who would beneficially own (Preferred Stock as determined in accordance with Section 13(d) set forth above, such Holder shall manually sign and deliver an irrevocable notice to the office of the Exchange Act Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) in the form included in Exhibit A hereto (a “Notice of Conversion”) and state in writing therein the number of shares of Preferred Stock to be converted and the rules and regulations promulgated thereundername or names (with addresses) in excess of 9.99% of which such Holder wishes the outstanding certificate or certificates for any shares of Common Stock to be delivered to be registered, (2) surrender such shares of Preferred Stock, at the office of the Conversion Agent and (3) if required, furnish appropriate endorsements and transfer documents. The Conversion Agent shall notify the Company of any conversion pursuant to this Section 8 on the Conversion Date for such conversion. The date on which a Holder complies with the procedures in this clause (b) is the “Conversion Date.” If more than one share of Preferred Stock shall be surrendered for conversion at one time by the same Holder, the number of shares of Common Stock to be delivered upon conversion of such shares of Preferred Stock shall be computed on the basis of the aggregate number of shares of Preferred Stock so surrendered.
(c) Immediately prior to the close of business on the Conversion Date with respect to a conversion, a converting Holder of Preferred Stock shall be deemed to be the holder of record of the Common Stock issuable upon conversion of such Holder’s Notes Preferred Stock notwithstanding that the share register of the Company shall then be required closed or that certificates representing such Common Stock shall not then be actually delivered to provide 61 days’ written notice such Holder. On the date of any conversion, all rights with respect to the Company prior shares of Preferred Stock so converted, including the rights, if any, to receive notices, will terminate, excepting only the rights of holders thereof (x) pursuant to Section 3(f) and (y) to (i) receive certificates for the number of whole shares of Common Stock into which such shares of Preferred Stock have been converted (with a cash payment in lieu of any such conversion. fractional share of Common Stock in accordance with Section 10); and (ii) exercise the rights to which they are thereafter entitled as holders of Common Stock.
(d) The Conversion Rate is subject to adjustment pursuant to Section 12.06.shall be adjusted, without duplication, upon the occurrence of any of the following events:
(bi) Following If the receipt Company exclusively issues shares of Common Stock as a dividend or distribution on all shares of its Common Stock, or if the Required Stockholder Approval and the effectiveness of the Charter AmendmentCompany effects a share split or share combination, the Company Conversion Rate shall convert (be adjusted based on the “Mandatory Conversion”) any outstanding Notes into a following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as the case may be; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date of such share split or share combination, as the case may be; OS0 = the number of shares of Common Stock per $1,000 principal amount of Notes equal outstanding immediately prior to the Conversion Rate then in effect (plus cash in lieu close of fractional shares) if business on the Daily VWAP of the Common Stock exceeds Record Date for such dividend or is equal distribution, or immediately prior to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount Effective Date of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer share split or a Change of Control Offer in accordance with Section 4.10 or Section 4.15share combination, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in as the case may be; and OS1 = the number of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock outstanding immediately after giving effect to such dividend or otherwise be deemed to be an “affiliate” distribution, or such share split or share combination, as the case may be. Any adjustment made under this Section 8(d)(i) shall become effective immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as the case may be. If any dividend or distribution of the Company for purposes type described in this Section 8(d)(i) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the Securities Act and/or date the Exchange upon Board determines not to pay such conversiondividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) If the Company will promptly enter into distributes to all or substantially all holders of its Common Stock any rights, options or warrants entitling them, for a Registration Rights Agreement covering period expiring not more than 60 days immediately following the announcement date of such distribution, to purchase or subscribe for shares of its Common Stock at a price per share that is less than the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date of such distribution, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution; OS0 = the number of shares of Common Stock received upon outstanding immediately prior to the close of business on the Record Date for such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).distribution;
Appears in 1 contract
Sources: Backstop and Subscription Agreement (Quinpario Acquisition Corp.)
Conversion. The mode of carrying the merger into effect and the manner and basis of converting the shares of EPT into shares of the Surviving Corporation are as follows: At the Closing, by virtue of the Merger, EPT shall cancel and extinguish each share of EPT Common Stock issued and outstanding and held of record by the EPT Shareholders immediately prior to the Closing, other than any shares held by holders of Dissenting Shares, and, in consideration thereof, EED shall issue to each of the EPT Shareholders, on a pro rata basis, 5,100,000 fully paid and non-assessable shares of EED Common Stock. Immediately prior to the Merger, (a) At any time following the receipt there shall be 10,000,000 shares of the Required Stockholder Approval EPT Common Stock issued and the effectiveness of the Charter Amendment, Holders of the Notes outstanding and (b) EED shall have the right convert effect a reverse stock split (the “Optional Conversion”"Stock Split") their so that the 1,019,000 shares of EED Common Stock issued and outstanding Notes, at any time and from time to time, on any Business Day, immediately prior to the earliest of (1) if applicable, with respect Effective Date shall be converted to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional 500,000 shares of EED Common Stock issued and outstanding, of which 53,729 shares shall be owned by PageOne Business Productions LLC. The EED Common Stock to be issued pursuant hereto shall be issued to the holders of EPT Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined exchange for their shares on a pro rata basis in accordance with Section 13(d) each holder's relative ownership of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of EPT Common Stock that is being exchanged. EPT represents that there are no outstanding warrants to purchase any capital stock of EPT but there is an outstanding debenture which allows the holders thereof, upon conversion the occurrence of certain events, to convert the indebtedness evidenced by such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes debenture into a certain number of shares of EPT (or its successor), as more fully set forth in Section 15 hereof. Fractional shares of EED Common shall not be issued, but in lieu thereof EED shall round up fractional shares to the next highest whole number. The shares of EED Common Stock per $1,000 principal amount of Notes equal to be issued in exchange for EPT Common Stock hereunder shall be proportionately reduced by any shares owned by EPT shareholders who shall have timely objected to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days merger (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee"Dissenting Shares") (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15the provisions of the General Corporation Law of Delaware, respectively, such Holder may convert its Notes into which objections will be dealt with as provided in those sections. Each share of EPT Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning is issued and outstanding and owned by EPT on the date Merger Date shall, by virtue of the provision merger and without any action on the part of EED, be retired and canceled. After giving effect to the Stock Split, each certificate evidencing ownership of shares of EED Common Stock issued and outstanding on the Merger Date or held by EED in its treasury, of which there are none, shall continue to evidence ownership of the Optional Conversion Notice and ending with the effectiveness same number of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of EED Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionStock.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Merger Agreement (Electro Pulse Technologies Commercial Inc)
Conversion. (a) At Subject to compliance with Section 11.02, at any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentReduction Cutoff Date, Holders of the Notes a Holder shall have the right to convert all or any portion (the if such portion is $1,000 Original Principal Amount or an integral multiple of $1,000 principal amount) of its Notes (“Optional Early Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1i) if applicable, the close of business on the fifth Business Day following the date of a Mandatory Conversion Notice delivered in accordance with Section 11.01(c), (ii) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2iii) the close of business on the Business Day immediately preceding the Maturity Datematurity date, into a number of shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal amount Original Principal Amount of Notes being converted equal to the Notes Conversion Rate then in effect (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.0311.03); provided that any . In addition, upon an Early Conversion, a Holder shall have the right to receive in cash, with respect to its Notes being converted, per $1,000 Original Principal Amount of Notes who would beneficially own (as determined being converted, accrued and unpaid interest to the Early Conversion Date in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.0611.02(b).
(b) [Reserved]
(c) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentReduction Cutoff Date, the Company shall have the right to convert the Notes (the “Mandatory Conversion”) any outstanding Notes ), in whole or in part, into a number of shares of Common Stock per $1,000 principal amount Original Principal Amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional sharesshares of Common Stock in accordance with Section 11.03), if each of the following conditions are satisfied: (i) if the Daily VWAP of the Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 20 Trading Days (whether or not consecutive) during any period of 30 consecutive Trading Days commencing after the Reduction Cutoff Date (the “Mandatory Conversion EventVWAP Condition”). Upon the occurrence of the Mandatory Conversion Event, ) and (ii) the Company shall deliver notice delivers to the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not notice of the Company’s election of its right to convert the Notes no later than the open of business on the second business day third Business Day immediately following the 20th Trading Day on which the Threshold Price was exceeded of any such 30 Trading Day period (a “Mandatory Conversion EventNotice”), which notice shall specify that the Mandatory Conversion shall occur not later than on the third business day sixth Business Day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion such notice (such date, the “Mandatory Conversion Date”); provided that, the Company’s right to cause a Mandatory Conversion shall be suspended during the period beginning on the date a Change of Control Offer is made and continuing to, and including, the applicable Change of Control Settlement Date. The Cash equal to accrued and but unpaid interest on any Note with respect to the Notes being converted pursuant to an Optional Conversion or any Mandatory Conversion to but excluding the applicable Mandatory Conversion Date shall also be added payable on such Mandatory Conversion Date; provided, that if such Mandatory Conversion Date occurs during the period after the close of business on any Record Date and before the opening of business on the corresponding Interest Payment Date, interest with respect to the principal amount Notes converted will be payable on such Interest Payment Date to the Holders in whose names the Notes are registered at the close of business on such Note being convertedRecord Date. The Mandatory Conversion Notice shall state that the Company is exercising its right to cause a Mandatory Conversion, the Conversion Rate and Conversion Price in effect on the Mandatory Conversion Date.
(d) If Notwithstanding the foregoing, a Holder exercises Reduction shall only occur, and the Company may only exercise its right to require cause a Mandatory Conversion, if, as evidenced by an Officers’ Certificate delivered to the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change Trustee and the Conversion Agent (if other than the Trustee) on the any Reduction Settlement Date and any Mandatory Conversion Date, as applicable, all of Control Offer in accordance with Section 4.10 or Section 4.15the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing on, respectivelyand including, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Reduction Notice (with respect to any Reduction Conversion) and any Mandatory Conversion Notice and ending with the effectiveness of such Optional ConversionNotice, as applicable, and (2y) in ending on, and including, the case of a corresponding Reduction Settlement Date (with respect to any Reduction) or Mandatory Conversion pursuant to Section 12.01(bDate, as applicable (the “Equity Conditions Measuring Period”), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own . The Equity Conditions are as follows:
(as determined in accordance with Section 13(di) of the Exchange Act and the rules and regulations promulgated thereundereither (1) in excess of 9.99% of the outstanding all shares of Common Stock or otherwise be deemed to be an “affiliate” issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for purposes sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such conversion.shelf registration statement to remain effective and available for use from the applicable Reduction Date (with respect to any Reduction) or the Mandatory Conversion Date until thirty days following such date;
(fii) At the request Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) to be delivered on such conversion is listed or traded on The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market, or any of their respective successors (each, an “Eligible Market”) and shall not then be suspended from trading on such Eligible Market;
(iii) at or prior to any HolderMandatory Conversion Settlement Date, for any Notes validly surrendered for conversion with an Early Conversion Date prior to the Mandatory Conversion Date in accordance with the terms of this Indenture, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of the Notes to the Holders in accordance with Section 11.01(a);
(iv) shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of The New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and
(v) no Event of Default shall have occurred and be continuing. For the avoidance of doubt, the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant may exercise its right to Section 12.01(a) or cause more than one Mandatory Conversion pursuant so long as any Notes are outstanding so long as it complies with the other requirements of this Section 11.01(d). If the Company exercises its right to Section 12.01(bcause a Mandatory Conversion in part, the Conversion Agent will select the Notes to be converted pro rata, by lot or by any other method the Conversion Agent in its sole discretion deems fair and appropriate (or, in the case of Notes represented by Global Notes, in such manner as The Depository Trust Company, a New York corporation (“DTC”) may require), in denominations of Original Principal Amount of $1,000 or any integral $1,000 multiple in excess thereof.
Appears in 1 contract
Sources: Second Supplemental Indenture (Whiting Petroleum Corp)
Conversion. (a) At any time following Subject to and upon compliance with the receipt provisions of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionIndenture, the close Holder may surrender for conversion all or any portion of business on this Security that is in an integral multiple of $1,000(3). Upon conversion, the Business Day immediately preceding Holder shall be entitled to receive the Redemption Date or (2) consideration specified in the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of Indenture. No fractional shares share of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock shall be issued upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversiona Security. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentInstead, the Company shall convert pay a cash adjustment as provided in the Indenture. The initial Conversion Rate of the Securities shall be (the “Mandatory Conversion”x) any outstanding Notes into a number of 500 shares of Common Stock per $1,000 principal amount of Notes equal Securities (for Securities denominated in $1,000 increments) and (y) 0.5 shares of Common Stock per $1.00 principal amount of Securities (for Securities denominated in $1.00 increments), subject to adjustment in accordance with the provisions of Article 4 of the Indenture. If a Holder converts all or any portion of this Security in connection with the occurrence of certain Fundamental Change transactions, the Conversion Rate then shall be increased in effect (plus cash the manner and to the extent described in lieu of fractional shares) if the Daily VWAP Section 4.06 of the Common Stock exceeds Indenture. Securities surrendered for conversion (in whole or is equal in part) during the period from the close of business on any Regular Record Date to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open opening of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) next succeeding Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion Payment Date shall be added accompanied by payment by the Holders of such Securities in funds to the principal amount of such Note being converted.
(d) If a Holder exercises its right Conversion Agent acceptable to require the Company of an amount equal to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, the interest payable on such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with corresponding Interest Payment Date; provided that no such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company payment need be made: (1) in connection with a conversion following the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on Regular Record Date preceding the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and Final Maturity Date; (2) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (3) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Security. A Security in the case respect of which a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that Holder has submitted a Fundamental Change Purchase Notice may be converted only if such Holder will beneficially own (as determined validly withdraws such Fundamental Change Purchase Notice in accordance with Section 13(d) the terms of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Indenture (Emergent Capital, Inc.)
Conversion. (a) At any time following the receipt option of the Required Stockholder Approval and the effectiveness Holder. All or any portion of the Charter Amendmentprincipal amount of this Debenture then outstanding shall be convertible into shares of Common Stock at the Conversion Price (subject to limitations set forth in Section 6(d)), Holders at the option of the Notes shall have the right convert (the “Optional Conversion”) their outstanding NotesHolder, at any time and from time to time, on any Business Day, prior time from and after the Original Issue Date. Holders shall effect conversions under this Section 6(a) by delivering to the earliest Company a Holder Conversion Notice together with a schedule in the form of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate Schedule 1 attached hereto (the “"Conversion Rate”) of 81.2 shares per Schedule"); provided, however, that each Holder Conversion Notice shall relate to not less than $1,000 1 million principal amount of Debentures. The number of Underlying Shares issuable upon any conversion hereunder shall (subject to limitations set forth in Section 6(d)) equal the Notes (outstanding principal amount of this Debenture to be converted plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Premium Amount, divided by the Conversion Price. If the Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) is converting less than all of the Exchange Act and the rules and regulations promulgated thereunder) principal amount represented by this Debenture, or if a conversion hereunder may not be effected in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice full due to the application of Section 6(d)(i), the Company prior shall honor such conversion to any such conversion. The the extent permissible hereunder and shall promptly deliver to the Holder a Conversion Rate is subject to adjustment pursuant to Section 12.06Schedule indicating the principal amount which has not been converted.
(b) Following At the receipt option of the Required Stockholder Approval Company. Subject to the conditions set forth in this Section 6(b) and the effectiveness of the Charter AmendmentSection 6(d), the Company shall convert (may at any time from and after the “Mandatory Conversion”) any Original Issuance Date require a conversion at the Conversion Price on the Company Conversion Date, of all but not less than all of the outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to this Debenture (including any Premium Amount) if: (i) the Conversion Rate then in effect VWAP for each day during any five (plus cash in lieu of fractional shares5) if the Daily VWAP of the Common Stock exceeds or consecutive Trading Days is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence or greater than 120% of the Mandatory Initial Conversion EventPrice and (ii) all of the Equity Conditions are satisfied as of the Company Conversion Date with respect to the Underlying Shares potentially issuable in connection with such proposed conversion. The Company shall exercise its right to require conversion hereunder by delivering to the Holder a Company Conversion Notice together with a Conversion Schedule upon the satisfaction of the condition set forth in clause (i) of the immediately preceding sentence. The number of Underlying Shares issuable upon any conversion hereunder shall (subject to limitations set forth in Section 6(d)) equal the outstanding principal amount of this Debenture to be converted (including any Premium Amount) divided by the Conversion Price. The conversion subject to a Company Conversion Notice, once given, shall be irrevocable as to the Company. If the conversion of a principal amount of Debentures indicated in a Company Conversion Notice would result in the issuance to the Holder of Underlying Shares in excess of the amount permitted pursuant to Section 6(d)(i), the Holder shall notify the Company shall deliver notice of this fact and theCompany shall: (x) honor the conversion for the maximum principal amount of Debentures (plus any Premium Amount) permitted, pursuant to Section 6(d)(i), to be converted on such Company Conversion Date and (y) cancel the Company Conversion Notice with respect to the Holders portion of the Notes, principal amount of Debentures the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open conversion of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventwould violate Section 6(d)(i).
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).Intentionally Left Blank
Appears in 1 contract
Conversion. 6.1 Upon the Maturity Date, the Holder will have the right, at its option, to convert all the Principal Amount hereof into Common Shares of the Company in a manner and in accordance with Section 6.2 below at the conversion price as set forth below in 6.3 below (asubject to adjustment as described herein).
6.2 In the event that the Holder elects to convert the Principal Amount of this Note into Common Shares, the Holder will give the Notice of Conversion to the Borrower before 4:00 p.m. (EST) At any time following on the Maturity Date. No later than fifteen (15) business days from the receipt of the Required Stockholder Approval then delivered Notice of Conversion to the Borrower, the Borrower will deliver to the Holder the agreed upon Common Shares equal to 3.23% of the fully diluted share capital of the Borrower as of the Conversion Date. The Borrower will cooperate with any reasonable requests made by the Holder to substantiate the capitalization, including the execution of additional documents containing legal representations. The Holder must surrender this Note to the Borrower upon receipt of the Common Shares. Pursuant to the terms of the Notice of Conversion, the Borrower will issue instructions to its transfer agent as soon as practicable thereafter, to cause to be issued and delivered to the Holder certificates for the number of Common Shares to which such Holder will be entitled. The Borrower will not issue fractional Common Shares upon conversion, but the number of Common Shares to be received by the Holder upon conversion will be rounded up the next whole number. In the case of the exercise of the conversion rights set forth herein the conversion privilege will be deemed to have been exercised and the effectiveness Common Shares issuable upon such conversion will be deemed to have been issued upon the date of receipt by the Borrower of the Charter AmendmentNotice of Conversion.
6.3 If the Holder elects to convert the Principal Amount under the Note to Common Shares, Holders the Principal Amount will be convertible into shares of Common Shares equal to 3. 23% of the Notes shall have fully diluted share capital of the right convert (Borrower as of the “Optional Conversion”) their outstanding NotesConversion Date.
6.4 The Borrower will reserve for issuance and maintain available, at any time and out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the full conversion of the Principal Amount under the Note, the full number of Common Shares deliverable upon the conversion of the Note. The Borrower will from time to timetime (subject to obtaining necessary director and shareholder approvals), on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of applicable laws and its governing documents, increase the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of its Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) Shares authorized if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date authorized number of shares of its Common Shares remaining unissued shall not be sufficient to permit the full conversion of the provision of Principal Amount under the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionNote.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following the receipt option of the Required Stockholder Approval and the effectiveness Holder. All or any portion of the Charter Amendmentprincipal amount of this Debenture then outstanding shall be convertible into shares of Common Stock at the Conversion Price (subject to limitations set forth in Section 6(d)), Holders at the option of the Notes shall have the right convert (the “Optional Conversion”) their outstanding NotesHolder, at any time and from time to timetime from and after the Original Issue Date. Holders shall effect conversions under this Section 6(a), on any Business Day, prior by delivering to the earliest Company a Holder Conversion Notice together with a schedule in the form of Schedule 1 attached hereto (the "CONVERSION SCHEDULE"). The number of Underlying Shares issuable upon any conversion hereunder shall (subject to limitations set forth in Section 6(d)) equal the outstanding principal amount of this Debenture to be converted (including any interest payments accreted to principal pursuant to the terms hereof) divided by the Initial Conversion Price. If the Holder is converting less than all of the principal amount represented by this Debenture, or if a conversion hereunder may not be effected in full due to the application of Section 6(d)(i), the Company shall honor such conversion to the extent permissible hereunder and shall promptly deliver to the Holder a Conversion Schedule indicating the principal amount which has not been converted.
(b) At the option of the Company. Subject to the conditions set forth in this Section 6(b) and Section 6(d), at any time after the earlier of (1x) if applicablethe first year anniversary of the Original Issue Date and (y) the 14th month anniversary of the Closing Date, the Company may require a conversion, at the Conversion Price and on the Company Conversion Date, of all or a portion of the outstanding principal amount of this Debenture if: (i) both: (A) the average of the Closing Prices during any 30 consecutive Trading Days following the first year anniversary of the Closing Date is equal to or greater than 120% of the Initial Conversion Price and (B) the Closing Price for each of 15 Trading Days (which need not be consecutive) during such 30 consecutive Trading Day period is equal to or greater than 120% of the Initial Conversion Price and (ii) all of the Equity Conditions are satisfied as of the Company Conversion Date with respect to the Underlying Shares potentially issuable in connection with such proposed conversion. The Company shall exercise its right to require conversions hereunder by delivering to the Holder a Note called for redemption, the close of business on the Company Conversion Notice together with a Conversion Schedule within 10 Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount Days of the Notes satisfaction of the condition set forth in clause (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(di) of the Exchange Act immediately preceding sentence. Notwithstanding anything herein to the contrary, if any of the conditions set forth in clauses (i) and (ii) herein shall cease to be in effect during the period between the date of the delivery of the Company Conversion Notice and the rules and regulations promulgated thereunder) in excess of 9.99% of Company Conversion Date, then the outstanding shares of Common Stock upon Holder subject to such conversion of such Holder’s Notes shall be required to provide 61 days’ may elect, by written notice to the Company prior given at any time after any such conditions shall cease to any be in effect, to invalidate ab initio such conversion. The Conversion Rate is number of Underlying Shares issuable upon any conversion hereunder shall (subject to adjustment limitations set forth in Section 6(d)) equal the outstanding principal amount of this Debenture to be converted (including any interest payments accreted to principal pursuant to the terms hereof) divided by the Initial Conversion Price. The conversion subject to each Company Conversion Notice, once given, shall be irrevocable as to the Company. If the conversion of a principal amount of Debentures indicated in a Company Conversion Notice would result in the issuance to the Holder of Underlying Shares in excess of the amount permitted pursuant to Section 12.06.
(b) Following 6(d)(i), the receipt Holder shall notify the Company of the Required Stockholder Approval this fact and the effectiveness of Company shall: (x) honor the Charter Amendment, conversion for the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 maximum principal amount of Notes equal Debentures permitted, pursuant to Section 6(d)(i), to be converted on such Company Conversion Date and (y) cancel the Company Conversion Notice with respect to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP portion of the Common Stock exceeds or is equal to principal amount of Debentures the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”conversion of which would violate Section 6(d)(i). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease Company's option to accrue on adjust Conversion Price and force conversion. At any Notes on time and from time to time after [the later to occur of: (i) the second month anniversary of the Closing Date and (ii) the Effective Date](11) [the date on which the Initial Debentures (as defined in the Purchase Agreement) shall no longer be outstanding](12), the Company shall have the option, upon the delivery of occurrence an Adjustment Notice to the Holder, to adjust the Conversion Price then in effect with respect to the Mandatory Convertible Amount applicable to such Adjustment Notice to equal the lesser of: (A) the Initial Conversion Price and (B) the product of (x) the applicable Adjustment Percentage and (y) the Index Price. Subject to the terms hereof (including, without limitation, Section 6(d)(i)), on each Adjustment Date immediately following the delivery of an Adjustment Notice, the applicable Mandatory Convertible Amount shall be converted into Underlying Shares at the Conversion Price as adjusted on such Adjustment Date pursuant to the terms of the Optional Conversion or immediately preceding sentence, provided, that such conversion shall only occur if all of the Mandatory Conversion (such date, Equity Conditions are satisfied as of the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added Adjustment Date with respect to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased Underlying Shares potentially issuable in connection with such Prepayment Offer or Change of Control Offer.
(e) In proposed conversion. Notwithstanding anything herein to the event that any Holder notified contrary, the Company shall not be entitled to deliver an Adjustment Notice prior to the tenth (110th) in Trading Day immediately following the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of immediately preceding Delivery Date. If a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date conversion of the Mandatory Conversion Event and ending 30 calendar days following Convertible Amount would result in the effectiveness issuance to the Holder of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).Underlying Shares ----------
Appears in 1 contract
Conversion. (a) At any time following After the receipt Convertible Closing (as defined in the Securities Purchase Agreement), the Principal Amount of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes this Note shall have the right convert (the “Optional Conversion”) their outstanding Notes, be convertible at any time and from time to time, on any Business Dayin whole or in part (such amount, the "CONVERTIBLE AMOUNT") at the option of the Holder hereof and upon notice to the Issuer as set forth below, into fully paid and nonassessable Common Shares at the Conversion Rate (as defined below). The initial conversion price per Common Share will be 80% of the Daily Price per Common Share for the ten (10) consecutive trading days immediately preceding the two consecutive trading days immediately prior to the earliest day of the Company Shareholder Meeting (as defined in the Securities Purchase Agreement) and shall be subject to adjustment as provided for herein (the "CONVERSION PRICE"). The number of Common Shares deliverable upon conversion of each $1,000 Convertible Amount of the Notes, adjusted as hereinafter provided, is referred to herein as the "CONVERSION RATE". The initial Conversion Rate shall be equal to the quotient resulting from dividing $1000 by the Conversion Price.
(b) The Conversion Price (and the corresponding Conversion Rate) shall be subject to adjustment from time to time as follows:
(i) In case the Issuer shall at any time after the date of the Convertible Closing (A) pay a dividend in Common Shares or make a distribution in Common Shares, (B) subdivide or split its outstanding Common Shares, (C) combine or reclassify its outstanding Common Shares into a smaller number of Common Shares, (D) issue by reclassification of its Common Shares other securities of the Issuer (including any such reclassification in connection with a consolidation or merger in which the Issuer is the continuing corporation), or (E) consolidate with, or merge with or into, any other Person, then in each such case the Conversion Rate in effect at the time of the record date for any such dividend or distribution or of the effective date of any such subdivision, split, combination, consolidation, merger or reclassification shall be proportionately adjusted so that the conversion of the Note after such time shall entitle the Holder to receive the kind and aggregate number of Common Shares or other securities of the Issuer (or shares of any security into which such Common Shares have been combined, consolidated, merged, converted or reclassified pursuant to clause (C), (D), or (E) above) which, if this Note had been converted immediately prior to such time, such Holder would have owned upon such conversion and been entitled to receive by virtue of such dividend, distribution, subdivision, split, combination, consolidation, merger or reclassification, assuming for purposes of this subsection 8.1(b)(i) that such Holder (x) is not a Person with which the Issuer consolidated or into which the Issuer merged or which merged into the Issuer or to which such recapitalization, sale or transfer was made, as the case may be ("CONSTITUENT PERSON") and (y) failed to exercise any rights of election as to the kind or amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, recapitalization, sale or transfer (provided, that if the kind or amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, recapitalization, sale or transfer is not the same for each Common Share of the Issuer held immediately prior to such reclassification, change, consolidation, merger, recapitalization, sale or transfer by other than a constituent person and in respect of which such rights of election shall not have been exercised ("NON-ELECTING SHARE"), then for the purpose of this Section 8.1(b)(i) the kind and amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, recapitalization, sale or transfer by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such adjustment shall be made successively whenever any event listed above shall occur.
(ii) In case the Issuer shall issue or sell any Common Shares (other than Common Shares issued (1) if applicablepursuant to the Issuer's non-qualified stock option plans for officers, with respect directors or key employees, or pursuant to a Note called for redemptionany similar Common Share related employee compensation plan of the Issuer approved by the Issuer's Board of Directors, the close of business on the Business Day immediately preceding the Redemption Date or (2) in connection with a merger or consolidation with or other acquisition of, another Person or the close acquisition of business on the Business Day immediately preceding assets of another Person, other than any such transaction that constitutes a Change in Control Liquidation Event (as such term is defined in the Maturity Date, into Common Stock, at Issuer's Amended and Restated Articles of Incorporation) or (3) upon exercise or conversion of any security the issuance of which caused an adjustment under Section 8.1(b)(iii) or (iv) hereof) without consideration or for a conversion rate consideration per share less than the Conversion Price (the “"ISSUE PRICE"), the Conversion Rate”Price to be in effect after such issuance or sale shall be determined by multiplying the Conversion Price in effect immediately prior to such issuance or sale by a fraction, the numerator of which shall be the sum of (x) the number of 81.2 shares per $1,000 Common Shares outstanding immediately prior to the time of such issuance or sale multiplied by the Issue Price and (y) the aggregate consideration, if any, to be received by the Issuer upon such issuance or sale, and the denominator of which shall be the product of the aggregate number of Common Shares outstanding immediately after such issuance or sale and the Conversion Price. In case any portion of the consideration to be received by the Issuer shall be in a form other than cash, the fair market value of such noncash consideration shall be utilized in the foregoing computation. Such fair market value shall be determined by the Board of Directors of the Issuer; provided that if Holders of 50% or more of the outstanding aggregate principal amount of the Notes shall object to any such determination, the Board of Directors of the Issuer shall retain an independent appraiser reasonably satisfactory to a majority of such Holders to determine such fair market value. Such Holders shall be notified promptly of any consideration other than cash to be received by the Issuer and furnished with a description of the consideration and the fair market value thereof, as determined by the Board of Directors of the Issuer.
(plus cash in lieu iii) In case the Issuer shall fix a record date for the issuance of fractional shares rights, options or warrants to the holders of Common Stock in accordance with Section 12.03); provided that any Holder Shares or other securities entitling such holders to subscribe for or purchase for a period expiring within 60 days of Notes who would beneficially own such record date Common Shares (or securities convertible into Common Shares) at a price per Common Share (or having a conversion price per Common Share, if a security convertible into Common Shares) less than the Conversion Price on such record date, the maximum number of Common Shares issuable upon exercise of such rights, options or warrants (or conversion of such convertible securities) shall be deemed to have been issued and outstanding as determined in accordance with Section 13(d) of the Exchange Act such record date and the rules and regulations promulgated thereunderConversion Price shall be adjusted pursuant to paragraph (b)(ii) in excess of 9.99% of the outstanding shares hereof, as though such maximum number of Common Stock Shares had been so issued for an aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such Common Shares. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in Section 8(b)(ii) hereof. Such adjustment shall be made successively whenever such record date is fixed; and in the event that such rights, options or warrants are not so issued or expire unexercised, or in the event of a change in the number of Common Shares to which the holders of such rights, options or warrants are entitled (other than pursuant to adjustment provisions therein comparable to those contained in this Section 8(b)), the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed, in the former event, or the Conversion Price which would then be in effect if such holder had initially been entitled to such changed number of Common Shares, in the latter event.
(iv) In case the Issuer shall issue rights, options (other than options issued pursuant to a plan described in Section 8(b)(ii)) or warrants entitling the holders thereof to subscribe for or purchase Common Shares (or securities convertible into Common Shares) or shall issue convertible securities, and the price per Common Share of such rights, options, warrants or convertible securities (including, in the case of rights, options or warrants, the price at which they may be exercised) is less than the Conversion Price, the maximum number of Common Shares issuable upon exercise of such rights, options or warrants or upon conversion of such Holder’s Notes convertible securities shall be required deemed to provide 61 days’ written notice to have been issued and outstanding as of the Company prior to any date of such conversion. The sale or issuance, and the Conversion Rate is subject to adjustment Price shall be adjusted pursuant to Section 12.068(b)(ii) hereof as though such maximum number of Common Shares had been so issued for an aggregate consideration equal to the aggregate consideration paid for such rights, options, warrants or convertible securities and the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such Common Shares. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in Section 8(b)(ii) hereof. Such adjustment shall be made successively whenever such rights, options, warrants or convertible securities are issued; and in the event that such rights, options or warrants expire unexercised, or in the event of a change in the number of Common Shares to which the holders of such rights, options, warrants or convertible securities are entitled (other than pursuant to adjustment provisions therein comparable to those contained in this Section 8(b)), the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such rights, options, warrants or convertible securities had not been issued, in the former event, or the Conversion Price which would then be in effect if such holders had initially been entitled to such changed number of Common Shares, in the latter event. No adjustment of the Conversion Price shall be made pursuant to this Section 8(b)(iv) to the extent that the Conversion Price shall have been adjusted pursuant to Section 8(b)(iii) upon the setting of any record date relating to such rights, options, warrants or convertible securities and such adjustment fully reflects the number of Common Shares to which the holders of such rights, options, warrants or convertible securities are entitled and the price payable therefor.
(bv) Following In case the receipt Issuer shall fix a record date for the making of a dividend or distribution to holders of Common Shares (including any such distribution made in connection with a consolidation or merger in which the Required Stockholder Approval Issuer is the continuing corporation) of evidences of indebtedness, cash, assets or other property (other than dividends payable in Common Shares or rights, options or warrants referred to in, and the effectiveness of the Charter Amendmentfor which an adjustment is made pursuant to, Section 8(b)(iii) hereof), the Company Conversion Price to be in effect after such record date shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to be determined by multiplying the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price Per Common Share (as defined below) on each applicable Trading Day for at least 15 consecutive Trading Days such record date, less the fair market value (the “Mandatory Conversion Event”). Upon the occurrence determined as set forth in Section 8(b)(ii) hereof) of the Mandatory Conversion Eventportion of the cash, assets, other property or evidence of indebtedness so to be distributed which is applicable to one Common Share, and the denominator of which shall be such Current Market Price Per Common Share. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Company Conversion Price shall deliver notice again be adjusted to the Holders of the Notes, the Trustee and be the Conversion Agent (Price which would then be in effect if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) record date had not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventbeen fixed.
(cvi) Interest shall cease to accrue For the purpose of any computation under Section 8(b) hereof, on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such determination date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion "CURRENT MARKET PRICE PER COMMON SHARE" shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” the average (weighted by daily trading volume) of the Company Daily Prices (as defined below) per Common Share for purposes of the Securities Act and/or 20 consecutive trading days immediately prior to such date. "DAILY Price" means (1) if the Exchange upon Common Shares then are listed and traded on the New York Stock Exchange, Inc. ("NYSE"), the closing price per share on such conversionday as reported on the NYSE Composite Transactions Tape; (2) if the Common Shares then are not listed and traded on the NYSE, the closing price per share on such day as reported by the principal national securities exchange on which the shares are listed and traded; (3) if the Common Shares then are not listed and traded on any such securities exchange, the Company will promptly enter into a Registration Rights Agreement covering last reported sale price per share on such day on the NASDAQ National Market; or (4) if the shares of such class of Common Shares then are not traded on the NASDAQ Stock received upon Market, the average of the highest reported bid and lowest reported asked price per share on such conversion.
(f) At day as reported by NASDAQ. If on any determination date the request Common Shares are not quoted by any such organization, the Current Market Price Per Common Share shall be the fair market value per share of such shares on such determination date as determined by the Board of Directors of the Issuer. If Holders of 50% or more of the outstanding aggregate principal amount of the Notes shall object to any determination by the Board of Directors of the Issuer of the Current Market Price Per Common Share, the Current Market Price Per Common Share shall be the fair market value per Common Share as determined by an independent appraiser retained by the Issuer at its expense and reasonably acceptable to such Holders. For purposes of any Holdercomputation under this Section 8(b), the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will number of Common Shares outstanding at any given time shall not be an “affiliate” include shares owned or held by or for the account of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Issuer.
Appears in 1 contract
Sources: Subordinated Note (Frontstep Inc)
Conversion. At the Effective Time, by virtue of the Merger and without any action on the part of any other person, the following shall occur:
(a) At each share of Gyrodyne Common Stock issued and outstanding (including any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”such shares that are owned by Gyrodyne as treasury stock) their outstanding Notes, at any time and from time to time, on any Business Day, immediately prior to the earliest Effective Time (other than Dissenting Shares) shall be converted into such number of (1) if applicable, with respect to a Note called for redemption, the close validly issued LLC Shares representing such shares' pro rata share of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.9915.2% of the outstanding shares LLC Shares in the aggregate, giving effect to consummation of Common Stock upon conversion of such Holder’s Notes the Merger, or as otherwise shall be required to provide 61 days’ written notice to determined by the Company Board of Directors of Gyrodyne and announced at least ten days prior to any Gyrodyne’s annual meeting of shareholders or such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.other meeting of shareholders at which shareholders of Gyrodyne shall consider and act upon this Plan of Merger;
(b) Following each common membership interest of GSD issued and outstanding immediately prior to the receipt Effective Time will be converted into such number of validly issued LLC Shares representing such shares' pro rata share of 55.6% of the Required Stockholder Approval and LLC Shares in the effectiveness aggregate, giving effect to consummation of the Charter AmendmentMerger, or as otherwise shall be determined by the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number Board of shares Directors of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for Gyrodyne and announced at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence ten days prior to Gyrodyne’s annual meeting of the Mandatory Conversion Event, the Company shareholders or such other meeting of shareholders at which shareholders of Gyrodyne shall deliver notice to the Holders consider and act upon this Plan of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.Merger;
(c) Interest each outstanding Dividend Note at the Effective Time shall cease to accrue on any Notes be redeemed by issuance such number of validly issued LLC Shares representing such Dividend Notes’ pro rata share (based on the date aggregate amount of occurrence Dividend Notes) of 29.2% of the Optional Conversion LLC Shares in the aggregate, giving effect to consummation of the Merger, or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion as otherwise shall be added determined by the Board of Directors of Gyrodyne and announced at least ten days prior to the principal amount Gyrodyne’s annual meeting of shareholders or such Note being converted.other meeting of shareholders at which shareholders of Gyrodyne shall consider and act upon this Plan of Merger;
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change each holder of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into shares of Gyrodyne Common Stock only if it withdraws its election (other than Dissenting Shareholders), each member of GSD and each holder of a Dividend Note automatically will be admitted to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.Gyrodyne, LLC as a Member; and
(e) In each LLC Share issued and outstanding immediately prior to the event Effective Time shall cease to be outstanding, automatically shall be canceled and retired and each person that was a member of Gyrodyne, LLC immediately prior to the Effective Time automatically shall cease to be a member of Gyrodyne, LLC, and, in each case, any Holder notified the Company (1) consideration paid by any such member shall be returned in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending connection with the effectiveness cancellation and retirement of such Optional Conversioninterest in Gyrodyne, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionLLC.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Gyrodyne Co of America Inc)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the 6.1 The Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, to be converted into fully paid Shares at any time up to and from time to time, on any including the Final Maturity Date (or if such day is not a Business Day, on the immediately following Business Day) on any of the following events prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Final Maturity Date, into Common Stock, at :
6.1.1 by submitting a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice Notice to the Company Issuer not less than fifteen (15) Business Days' prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(a) 30 September 2024 and/or (b) Following the receipt final day of each subsequent Quarter, while any Notes remain outstanding, at the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to Noteholder’s option at the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for Price;
6.1.2 at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes Price on the date of occurrence of the Optional Conversion or the Mandatory Conversion that a relevant Offer (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant Takeover Offer) is declared, or becomes, unconditional or (in the case of a Scheme) becomes effective unless an equivalent offer is made to Section 12.01(bNoteholders by the offeror in accordance with Rule 15 of the Takeover Code (which date can be adjusted by written agreement between the Issuer and each Noteholder); or
6.1.3 on an Equity Issue, at the Noteholder’s option at the Equity Issue Price, each a “Conversion Event”.
6.2 Conversion may occur in whole or in parts of no less than £25,000 of Notes (or less if it represents a Noteholder’s entire holding of Notes).
6.3 The occurrence of a Conversion Event shall be without prejudice to any time beginning with Noteholder’s right to payment of any accrued but unpaid interest and any unpaid Redemption Premium arising under Condition 5.2.
6.4 If and when a Conversion Event under Condition 6.1 occurs, the date Issuer shall give Noteholders not less than 15 clear Business Days' prior written notice of the Mandatory Equity Issue specifying the terms of the Equity Issue and the Conversion Date. If the Issuer has given notice to Noteholders of a proposed Conversion Event and ending 30 calendar days following it becomes apparent to the effectiveness Issuer that the Conversion Event is not after all to take effect, the Issuer shall promptly give notice to the Noteholders to that effect.
6.5 Subject to early redemption of such conversion, that such Holder will beneficially own (as determined whole or part of the Notes in accordance with Section 13(d) Condition 5 and Condition 6.1 above, any or all of the Exchange Act and Notes held by the rules and regulations promulgated thereunder) Noteholder which remain outstanding may be converted into fully paid Shares by the Noteholder serving upon the Issuer a Conversion Notice.
6.6 The Conversion Notice shall:
6.6.1 specify the nominal amount of Notes held by it in excess respect of 9.99% which the Noteholder wishes to exercise its right for the conversion of the outstanding shares Notes into fully paid Shares;
6.6.2 be duly completed and signed by the Noteholder; and
6.6.3 be accompanied by a copy of Common Stock or otherwise be deemed the certificate representing the Notes to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionconverted.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Convertible Notes Agreement
Conversion. (a) At any time following the receipt From and after January 1, 2006, all, but not less than all, of the Required Stockholder Approval outstanding principal amount of this Note together with interest accrued thereon through and including the effective date of such conversion, is convertible, at the option of Company, into shares of common stock of the Company ("Common Stock") at a price of forty cents ($.40) per share (the "Conversion Price"), subject to adjustment pursuant to the terms and provision hereof (as so adjusted, the "Conversion Price"), provided that on the day that the Conversion Notice (as hereinafter defined) is given by the Company to the Holder and on the Conversion Date (as hereinafter defined), the following conditions are satisfied: (i)
(A) the shares of Common Stock issuable upon conversion have been registered by the Company for resale by the Holder pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and the effectiveness registration statement effecting such registration (the "Registration Statement") is then currently effective or (B) there is available an exemption that would permit such shares of Common Stock to be immediately resold by the Holder; and (ii) any lock-up agreement entered into by the Holder in favor of or at the request of the Charter Amendment, Company has expired or been waived. Any notice of conversion ("Conversion Notice") must be given by the Company to all Holders of the Notes shall have the right convert record of this Note no less than thirty (the “Optional Conversion”30) their outstanding Notes, at any time and from time to time, on any Business Day, days nor more than forty-five (45) days prior to the earliest date set forth for conversion (the "Conversion Date"). The Conversion Notice shall remain effective only if the Registration Statement remains effective continually throughout the notice period or counsel for the Company does not revoke its opinion as to the availability of (1) if applicable, with respect to a Note called for redemptionan exemption permitting immediate resale of the Common Stock. On the Conversion Date, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 outstanding principal amount of this Note, and all interest accrued thereon through and including the Notes Conversion Date, shall automatically and without further notice be deemed converted into shares of Common Stock at the Conversion Price then in effect and not later than three (plus 3) business days after the presentation of this Note, the Company will deliver to the Holder a certificate or certificates representing the number of shares of Common Stock into which the then-outstanding principal amount of and interest accrued on this Note was converted on the Conversion Date, together with cash in lieu of fractional shares of Common Stock in accordance with pursuant to Section 12.03); provided that 1(e) hereof, if applicable.
(b) From and after the earlier of (i) January 1, 2007, and (ii) the first date on which the Company intends to effect any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) capital reorganization of the Exchange Company, any reclassification or recapitalization of the capital stock of the Company, any merger, consolidation or other combination of the Company with or into any other Company, or any sale or transfer of all or substantially all the assets of the Company to any other person or any voluntary or involuntary dissolution, liquidation or winding up of the Company, all, but not less than all, of the outstanding principal amount of this Note together with interest accrued thereon through and including the effective date of such conversion, is convertible, at the option of the Holder, into shares of Common Stock at the Conversion Price. To effect such conversion, the Holder shall deliver this Note with a duly executed Conversion Notice in the form annexed hereto to the Company at the address set forth herein. For purposes of a conversion by the Holder, the date upon which a Conversion Notice is received by the Company is referred to as the Conversion Date. On the Conversion Date, the outstanding principal amount of this Note, and all interest accrued thereon through and including the Conversion Date, shall automatically and without further notice be deemed converted into shares of Common Stock at the Conversion Price then in effect and not later than three (3) business days after the presentation of this Note, the Company will deliver to the Holder a certificate or certificates representing the number of shares of Common Stock into which the then-outstanding principal amount of and interest accrued on this Note was converted on the Conversion Date, together with cash in lieu of fractional shares of Common Stock pursuant to Section 1(e) hereof, if applicable.
(c) Upon request of the Company the Holder shall cooperate in the registration under the Securities Act of the Common Stock issuable hereunder by complying with its obligations under the Registration Rights Provisions annexed hereto as Exhibit A (the "Registration Rights Provisions").
(d) Subject to the provisions of this Section 1(d) and 1(e), the rules number of shares of Common Stock issuable upon conversion of this Note shall be the entire principal amount of this Note together with all accrued but unpaid interest thereon through and regulations promulgated thereunderincluding the Conversion Date, divided by the Conversion Price then in effect.
(i) If the Common Stock issuable upon conversion of the principal amount of this Note shall be changed into the same or a different number of shares of any other class or classes of stock or other equity security, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares provided for below or a merger or consolidation as provided for below) then, concurrently with the effectiveness of such reorganization, recapitalization or other similar transaction, the securities issuable upon conversion of this Note shall be adjusted such that this Note shall be convertible into, in excess lieu of 9.99% the number of shares of Common Stock that the Holders would otherwise be entitled to receive, a number of shares of such other class or classes of stock or other equity security equivalent to the number of shares of such class or classes that would have been issued to the Holders had they converted this Note immediately prior to such change and had they thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by them as aforesaid during such period, subject to all other adjustments called for during such period under this Section. The Conversion Price upon such conversion shall be the Conversion Price that would otherwise be in effect pursuant to the terms hereof. Notwithstanding anything herein to the contrary, the Company will not effect any such reorganization reclassification or other similar transactions unless prior to the consummation thereof, the entity that may be required to deliver stock upon the conversion of this Note shall agree by an instrument in writing to deliver such stock, cash, or other equity security to the Holder.
(ii) If the Company at any time or from time to time makes or fixes a record date for the determination of holders of Common Stock entitled to receive any distributions payable in securities of the Company other than shares of Common Stock and as otherwise adjusted in this Section, then and in such event provision shall be made so that the Holder receives upon conversion hereof, in addition to the number of shares of Common Stock receivable, the amount of securities of the Company that he would have received had this Note been converted into Common Stock on the date of such event and had he thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable as aforesaid during such period, subject to all other adjustments called for during such period under this Section.
(iii) In case the Company at any time or from time to time after the date hereof shall (a) declare or pay any dividend on the Common Stock payable in shares of Common Stock, (b) subdivide the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a greater number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of combine the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering smaller number of shares of Common Stock, then, and in each such case, the Conversion Price shall be adjusted to that price determined by multiplying the Conversion Price in effect by a fraction (x) the numerator of which shall be the number of issued and outstanding shares of Common Stock immediately before such dividend, distribution, subdivision or combination and (y) the denominator of which shall be the total number of issued and outstanding shares of Common Stock immediately after such dividend, distribution, subdivision or combination. Upon such adjustment of the Conversion Price, the number of shares of Common Stock issuable upon conversion of this Note shall be increased (in the case of a reduction in the Conversion Price) or decreased (in the case of an increase in the Conversion Price) proportionately.
(iv) If the Company shall merge, consolidate or otherwise combine with or into another entity, this Note shall automatically become convertible into the same kind and number of shares of stock and other securities, cash or property (and upon the same terms and with the same rights) as would have been received by a holder of the number of shares of Common Stock into which this Note could have been converted immediately prior to such merger, consolidation or combination, without change to the Conversion Price. Notwithstanding anything herein to the contrary, the Company will not effect any such merger, consolidation or combination, unless prior to consummation thereof, the entity that may be required to deliver stock, cash, securities or other assets upon the conversion of this Note shall agree by an instrument in writing to deliver such conversionstock, cash, securities or other assets to the Holder.
(e) Upon a conversion hereunder, the Company shall not be required to issue fractional shares of Common Stock or scrip representing fractional shares of Common Stock. In lieu thereof, the Company may, if otherwise permitted, make a cash payment in respect of any fractional share based on the Conversion Price at such time. No cash payment of less than $1.00 shall be required to be given unless specifically requested by the Holder. If the Company elects not, or is unable, to make such a cash payment, the Holder shall be entitled to receive, in lieu of the final fraction of a share, one whole share of Common Stock.
(f) At The issuance of certificates for shares of Common Stock on conversion of this Note shall be made without charge to the request holders thereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificate, provided that the Company shall not be required to pay any tax that may be payable in respect of any Holdertransfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
(g) The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of this Note and the Convertible Promissory Note issued to Dario Peragallo pursuant to the Stock Purchase Agreement (the "Peragal▇▇ ▇▇▇▇"), ▇▇▇▇ number of its shares of Common Stock as shall f▇▇▇ ▇▇▇▇ to time be sufficient to effect the conversion of this Note and the Peragallo Note; and if at any time the number of authorized but unissu▇▇ ▇▇▇▇▇▇ of Common Stock shall not be sufficient to effect the conversion of this Note and the Peragallo Note, the Company will use promptly take such corporate action a▇ ▇▇▇, ▇▇ the opinion of its reasonable efforts counsel, be necessary to cooperate increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.
(h) In each case of an adjustment or readjustment of the Conversion Price or the number of shares of Common Stock or other securities issuable upon conversion of this Note, the Company, at its own expense, shall cause its Chief Financial Officer to compute such adjustment or readjustment in accordance with the provisions hereof and prepare a certificate showing such Holder adjustment or readjustment, and shall send such certificate, by prepaid courier, to confirm with brokers that the Holder. The certificate shall set forth such Holder will adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based. No adjustment in the Conversion Price shall be required to be made unless it would result in an increase or decrease of at least one cent, but any adjustments not made because of this sentence shall be an “affiliate” carried forward and taken into account in any subsequent adjustment otherwise required hereunder.
(i) Upon (i) the establishment by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or (ii) any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any merger, consolidation or other combination of the Company for purposes with or into any other Company, or any sale or transfer of all or substantially all the assets of the Securities Act and/or Company to any other person or any voluntary or involuntary dissolution, liquidation or winding up of the Exchange Act Company, the Company shall send to the Holder at least twenty days prior to the record date specified therein a notice specifying (A) the date on which any such record is to be taken for the purpose of such dividend or distribution and a description of such dividend or distribution, (B) the date on which any such reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is expected to become effective, and (C) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up.
(j) The Company shall not amend its Certificate of Incorporation or participate in any Optional Conversion pursuant reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action for the purpose of avoiding or seeking to Section 12.01(a) avoid the observance or Mandatory Conversion pursuant performance of any of the terms to Section 12.01(b)be observed or performed hereunder by the Company, but shall at all times in good faith assist in carrying out all such action as may be reasonably necessary or appropriate in order to protect the conversion rights of the Holders of this Note against dilution or other impairment as provided herein.
Appears in 1 contract
Sources: Convertible Promissory Note (Ashlin Development Corp)
Conversion. (a) At any time following the receipt Upon satisfaction of the Required Stockholder Approval and the effectiveness conditions set forth in Section 10.01(a) of the Charter AmendmentIndenture, Holders a Holder of a Security may convert any portion of the Notes shall have the right convert principal amount of any Security that is an integral multiple of $1,000 into cash and fully paid and non-assessable shares (the “Optional Conversion”) their outstanding Notes, at any time and from time calculated as to time, on any Business Day, prior each conversion to the earliest nearest 1/10000th of (1a share) of Common Stock in accordance with the provisions of Section 10.14 of the Indenture; provided that if applicable, with respect to a Note such Security is called for redemption, the conversion right will terminate at the close of business on the second Business Day immediately preceding the Redemption Date of such Security (unless the Company shall default in making the redemption payment when due, in which case the conversion right shall terminate at the close of business on the date such Default is cured and such Security is redeemed). Such conversion right shall commence on the initial issuance date of the Securities and expire at the close of business on the Business Day immediately preceding the Redemption Date date of maturity, subject, in the case of conversion of any Global Security, to any Applicable Procedures. The Conversion Price shall, as of the date of the Indenture, initially be $24.03 per share of Common Stock. The Conversion Rate shall, as of the date of the Indenture, initially be approximately 41.6146. The Conversion Price and Conversion Rate will be adjusted under the circumstances specified in the Indenture. Upon conversion, no adjustment for interest (including Liquidated Damages, if any) or dividends will be made. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the Ten Day Average Closing Stock Price (2as defined in the Indenture). Except as provided in Section 10.01(c) of the Indenture, delivery of the Principal Return, Net Shares and cash in lieu of fractional shares shall be deemed to satisfy the Company’s obligation to pay the principal amount of a converted Security and accrued but unpaid interest (including Liquidated Damages, if any) thereon. Any accrued interest (including Liquidated Damages, if any) payable on a converted Security will be deemed paid in full, rather than canceled, extinguished or forfeited. To convert a Security, a Holder must (a) complete and manually sign the conversion notice set forth below and deliver such notice to the Conversion Agent, (b) surrender the Security to the Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by the Registrar or the Conversion Agent, (d) pay any transfer or other tax, if required and (e) if the Security is held in book-entry form, complete and deliver to the Depositary appropriate instructions pursuant to the Applicable Procedures. If a Holder surrenders a Security for conversion between the close of business on the Business Day immediately preceding record date for the Maturity Datepayment of an installment of interest and the opening of business on the related interest payment date, into Common Stockthe Security must be accompanied by payment of an amount equal to the interest (including Liquidated Damages, at a conversion rate (if any) payable on such interest payment date on the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03)Security or portion thereof then converted; provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of no such Holder’s Notes payment shall be required to provide 61 days’ written notice to if such Security has been called for redemption on a Redemption Date within the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open period between close of business on such record date and the second opening of business day following on such Mandatory Conversion Eventinterest payment date, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes or if such Security is surrendered for conversion on the date interest payment date. A Holder may convert a portion of occurrence a Security equal to $1,000 or any integral multiple thereof. A Security in respect of which a Holder has delivered a Repurchase Notice or a Change of Control Repurchase Notice exercising the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount option of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer such Security as provided in Section 3.08 or a Change Section 3.09, respectively, of Control Offer the Indenture may be converted only if such notice of exercise is withdrawn in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date terms of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Security Agreement (Veritas DGC Inc)
Conversion. (a) At any time following the receipt Each Holder of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Preferred Stock shall have the right convert (the “Optional Conversion”) their outstanding Notesat any time, at any time and from time its option, to timeconvert, on any Business Day, prior subject to the earliest terms and provisions of (1) if applicablethis Section 9, with respect to a Note called for redemptionany or all of such Holder’s shares of Preferred Stock at the Conversion Rate. Upon conversion of any share of Preferred Stock, the close Company shall deliver to the converting Holder, in respect of business on each share of Preferred Stock being converted, a number of shares of Common Stock equal to the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus , together with a cash payment in lieu of any fractional shares share of Common Stock in accordance with Section 12.03); provided that 11, on the third Business Day immediately following the relevant Conversion Date.
(b) Before any Holder shall be entitled to convert a share of Notes who would beneficially own Preferred Stock as set forth above, such Holder shall:
(as determined i) in accordance the case of a beneficial interest in a Global Preferred Stock, comply with Section 13(d) the procedures of the Exchange Act Depository in effect at that time; and
(ii) in the case of Certificated Preferred Stock:
(1) complete, manually sign and deliver an irrevocable notice to the office of the conversion agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) in the form set forth in Exhibit B hereto (a “Notice of Conversion”) and state in writing therein the number of shares of Preferred Stock to be converted and the rules and regulations promulgated thereundername or names (with addresses) in excess of 9.99% of which such Holder wishes the outstanding certificate or certificates for any shares of Common Stock to be delivered to be registered,
(2) surrender such shares of Preferred Stock, at the office of the conversion agent; and
(3) if required, furnish appropriate endorsements and transfer documents. The conversion agent shall notify the Company of any conversion pursuant to this Section 9 on the Conversion Date for such conversion. The date on which a Holder complies with the procedures in this Section 9(b) is the “Conversion Date.” If more than one share of Preferred Stock shall be surrendered for conversion at one time by the same Holder, the number of shares of Common Stock to be delivered upon conversion of such shares of Preferred Stock shall be computed on the basis of the aggregate number of shares of Preferred Stock so surrendered.
(c) Immediately prior to the close of business on the Conversion Date with respect to a conversion, a converting Holder of Preferred Stock shall be deemed to be the holder of record of the Common Stock issuable upon conversion of such Holder’s Notes Preferred Stock notwithstanding that the share register of the Company shall then be required closed or that certificates representing such Common Stock shall not then be actually delivered to provide 61 days’ written notice such Holder. On the date of any conversion, all rights with respect to the Company prior shares of Preferred Stock so converted, including the rights, if any, to receive notices, will terminate, excepting only the rights of holders thereof to:
(i) receive certificates for the number of whole shares of Common Stock into which such shares of Preferred Stock have been converted (with a cash payment in lieu of any such conversion. fractional share of Common Stock in accordance with Section 11); and
(ii) exercise the rights to which they are thereafter entitled as holders of Common Stock.
(d) The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following shall be adjusted, without duplication, upon the receipt occurrence of any of the Required Stockholder Approval and the effectiveness of the Charter Amendmentfollowing events, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Preferred Stock participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Preferred Stock, in any of the transactions described in this Section 9(d), without having to convert (the “Mandatory Conversion”) any outstanding Notes into their Preferred Stock, as if they held a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate, multiplied by the number of shares of Preferred Stock held by such Holder:
(i) If the Company exclusively issues shares of Common Stock as a dividend or distribution on all shares of its Common Stock, or if the Company effects a share split or share combination, the Conversion Rate then shall be adjusted based on the following formula: OS1 CR1= CR0 x OS0 where, CR0 = the Conversion Rate in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal immediately prior to the Threshold Price in effect close of business on each applicable Trading Day the Record Date for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventsuch dividend or distribution, the Company shall deliver notice or immediately prior to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second Effective Date of such share split or share combination, as the case may be; CR1 = the Conversion Rate in effect immediately after the close of business day following on the Record Date for such Mandatory Conversion Eventdividend or distribution, which notice or immediately after the open of business on the Effective Date of such share split or share combination, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as the case may be; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend or distribution, or such share split or share combination, as the case may be. Any adjustment made under this Section 9(d)(i) shall specify that become effective immediately after the Mandatory Conversion shall occur not later than close of business on the third Record Date for such dividend or distribution, or immediately after the open of business day following on the notice Effective Date for such share split or share combination, as the case may be. If any dividend or distribution of the Mandatory type described in this Section 9(d)(i) is declared but not so paid or made, the Conversion EventRate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(cii) Interest If the Company distributes to all or substantially all holders of its Common Stock any rights, options or warrants entitling them, for a period expiring not more than 60 days immediately following the announcement date of such distribution, to purchase or subscribe for shares of its Common Stock at a price per share that is less than the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date of such distribution, the Conversion Rate shall cease be increased based on the following formula: OS0 + X CR1= CR0 x OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to accrue the close of business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the close of business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date of such distribution. Any increase made under this Section 9(d)(ii) shall be made successively whenever any Notes such rights, options or warrants are distributed and shall become effective immediately after the close of business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted, effective as of the date of such expiration, to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make such distribution, to be the Conversion Rate that would then be in effect if such Record Date for such distribution had not occurred. For purposes of this Section 9(d)(ii), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date of such distribution, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(iii) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets, securities or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Common Stock, excluding (a) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 9(d)(i) or Section 9(d)(ii), (b) dividends or distributions paid exclusively in cash as to which the provisions of Section 9(d)(iv) shall apply and (c) Spin-Offs as to which the provisions set forth below in this Section 9(d)(iii) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets, securities or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: ▇▇▇ = CR0 x SP0 – FMV where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date for such distribution; and FMV = the fair market value as of the Record Date for such distribution (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock. Any increase made under the portion of this Section 9(d)(iii) above shall become effective immediately after the close of business on the Record Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to pay the distribution, to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of Preferred Stock shall receive, for each share of Preferred Stock, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of Distributed Property that such Holder would have received as if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 9(d)(iii) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date for such distribution. With respect to an adjustment pursuant to this Section 9(d)(iii) where there has been a payment of a dividend or other distribution on the Common Stock consisting solely of shares of Capital Stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company where such Capital Stock or similar equity interest is, or will be when issued, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate will be increased based on the following formula: FMV + MP0 CR1= CR0 x MP0 where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Ex-Date for the Spin-Off; CR1 = the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Ex-Date for the Spin-Off; FMV = the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock over the 10 consecutive Trading Day period immediately following, and including, the Ex-Date for the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period immediately following, and including, the Ex-Date for the Spin-Off. The adjustment to the Conversion Rate under the preceding paragraph shall become effective at the close of business on the 10th Trading Day immediately following, and including, the Ex-Date for the Spin-Off; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the 10 Trading Days following, and including, the Ex-Date of any Spin-Off, references within the portion of this Section 9(d)(iii) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced with such lesser number of consecutive Trading Days as have elapsed between the Ex-Date of such Spin-Off and the relevant Conversion Date. For purposes of this Section 9(d)(iii) (and subject in all respect to Section 9(j)), rights, options or warrants distributed by the Company to all holders of Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of the Common Stock,
(ii) are not exercisable and
(iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 9(d)(iii) (and no adjustment to the Conversion Rate under this Section 9(d)(iii) will be required) until the occurrence of the Optional earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion or the Mandatory Conversion (such date, the “Conversion Date”Rate shall be made under this Section 9(d)(iii). The accrued If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to May [ ], 2015, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion each such event shall be added deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the principal amount of such Note being converted.Conversion Rate under this Section 9(d)(iii) was made:
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a)any such rights, at options or warrants that shall all have been redeemed or purchased without exercise by any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversionholders thereof, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) final redemption or Mandatory Conversion pursuant to Section 12.01(b).purchase:
Appears in 1 contract
Sources: Purchase Agreement (MRC Global Inc.)
Conversion. (a) At any time following the receipt date hereof (including, for the avoidance of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notesdoubt, at any time and from time prior to time, 5:00 p.m. (ET) on any Business Day, the business day prior to the earliest of (1) if applicable, with respect to a Note called for redemptionMaturity Date), the close Holder shall have the right, in the Holder’s sole discretion, to convert all or any part of business on the Business Day immediately preceding Outstanding Amount of this Note (the Redemption Date or “Conversion”), without the payment of any additional consideration therefor, into the number of fully paid and nonassessable LLC Units that is determined by dividing (2i) the close portion of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate Outstanding Amount being converted by (ii) $1.45 (the “Conversion RatePrice”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate Price is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a)Company, at any time beginning while this Note is outstanding: (i) pays a dividend of LLC Units or otherwise makes a distribution or distributions on LLC Units or any other equity or equity equivalent securities payable in LLC Units (which, for avoidance of doubt, shall not include any LLC Units issued by the date Company upon conversion of this Note), (ii) subdivides outstanding LLC Units into a larger number of units, (iii) combines (including by way of reverse split) outstanding LLC Units into a smaller number of units, (iv) issues by reclassification of LLC Units any LLC Units of the provision Company or (v) takes any similar action or any action designed to have a similar effect, then in each case the Conversion Price shall be multiplied by a fraction of which the Optional Conversion Notice numerator shall be the number of LLC Units (excluding LLC Units held in treasury, if any) outstanding immediately before such event and ending with of which the effectiveness denominator shall be the number of LLC Units outstanding immediately after such Optional Conversionevent, and the number of LLC Units issuable upon Conversion shall be proportionately adjusted such that the aggregate Conversion Price of this Note shall remain unchanged. Any adjustment made pursuant to this Section 2 shall become effective immediately after the record date for the determination of members entitled to participate in such event described in clauses (2i) through (v) and shall become effective immediately after the effective date in the case of a Mandatory subdivision, combination, reclassification or similar action. Whenever the Conversion Price is adjusted pursuant to this Section 12.01(b)2, at any time beginning with the date of Company shall promptly notify the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversionHolder, that such Holder will beneficially own (as determined in accordance with Section 13(d) the Purchase Agreement, of the Exchange Act Conversion Price after such adjustment, any resulting adjustment to the number of LLC Units issuable upon Conversion and the rules and regulations promulgated thereunder) in excess of 9.99% a brief statement of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon facts requiring such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionadjustment.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Securities Purchase Agreement (Institutional Financial Markets, Inc.)
Conversion. (a) At any time following Subject to the receipt provisions of the Required Stockholder Approval Indenture, the Holder of a LYON may convert the LYON into Common Stock on a Conversion Date in any fiscal quarter (and only during such fiscal quarter) if the effectiveness closing sale price of the Charter Amendment, Holders Common Stock for at least 20 trading days in a period of 30 consecutive trading days ending on the last trading day of the Notes immediately preceding fiscal quarter is more than 110% of the Accreted Conversion Price per share of Common Stock on the last trading day of such preceding fiscal quarter87aq. The "Accreted Conversion Price", as of any date of determination, shall have equal (x) the right convert sum of the Issue Price per $1,000 Principal Amount at Maturity of a LYON plus accrued Original Issue Discount thereon computed to, but not including, such date divided by (y) the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior Conversion Rate as of such date. Subject to the earliest provisions of (1) if applicablethe Indenture, with respect to a Note Holder may convert into Common Stock a LYON or portion of a LYON which has been called for redemptionredemption by the Company, even if the LYON , or any portion thereof is not subject to conversion by the Holder, but such ▇▇▇▇▇ may be surrendered for conversion until the close of business on the second Business Day immediately preceding the Redemption Date Date. Subject to the provisions of the Indenture, in the event the Company is a party to a consolidation, merger or binding share exchange pursuant to which the Common Stock would be converted into cash, securities or other property as set forth in Section 404 of the Second Supplemental Indenture, the ▇▇▇▇▇ may be surrendered for conversion at any time from and after the date which is 15 days prior to the date of the anticipated effective time of such transaction announced by the Company until 15 days after the actual effective date of such transaction, and at the effective time of such transaction the right to convert a LYON into Common Stock will be deemed to have changed into a right to convert it into the kind and amount of cash, securities or other property which the holder would have received if the holder had converted its LYON immediately prior to the transaction. Subject to the provisions of the Indenture, upon the election by the Company to make a distribution as described in paragraphs (2b), (c) and (d) of Section 409 of the Indenture, which in the case of paragraph (d) of such Section has a per share value equal to more than 15% of the Sale Price of shares of Common Stock on the Trading Day preceding the declaration date for such distribution, the Company shall give notice to Holders of the ▇▇▇▇▇ not less than 20 days prior to the ex-dividend date for such distribution. Upon giving such notice, Holders may surrender the ▇▇▇▇▇ for conversion at any time until the close of business on of the Business Day immediately preceding prior to the Maturity Date, into ex-dividend date or until the Company publicly announces that such distribution will not be given effect. A LYON in respect of which a Holder has delivered a Purchase Notice or Change in Control Purchase Notice exercising the option of such Holder to require the Company to purchase such LYON may be converted only if such notice of exercise is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is 16.5964 shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal Principal Amount at Maturity of ▇▇▇▇▇, subject to adjustment upon the occurrence of certain events described in the Indenture. A Holder's right to convert the ▇▇▇▇▇ into Common Stock of the Company is also subject to the Company's right to elect to pay such Holder the amount of cash set forth in the Notes next succeeding sentence (plus or an equivalent amount in a combination of cash and shares of Common Stock), in lieu of delivering all or part of such Common Stock; provided, however, that if such payment of cash is not permitted pursuant to the provisions of the Indenture, the Company shall deliver Common Stock (and cash in lieu of fractional shares of Common Stock Stock) in accordance with Section 12.03); provided the Indenture, whether or not the Company has delivered a notice pursuant to the Indenture to the effect that any Holder the ▇▇▇▇▇ will be paid in cash. The amount of Notes who would beneficially own (as determined in accordance with Section 13(d) cash to be paid for each $1,000 Principal Amount at Maturity of a LYON shall be equal to the average Sale Price of a share of Common Stock of the Exchange Act and Company for the rules and regulations promulgated thereunderfive consecutive Trading Days immediately following (i) in excess of 9.99% the date of the outstanding Company's notice of its election to deliver cash upon conversion, if the Company has not given a notice of redemption pursuant to the Indenture, or (ii) the Conversion Date, in the case of a conversion following such a notice of redemption specifying an intent to deliver cash or a combination of cash and Common Stock upon conversion, in either case multiplied by the Conversion Rate in effect on such Conversion Date. If the Company shall elect to make such payment wholly in shares of Common Stock, then such shares shall be delivered through the Conversion Agent to Holders surrendering ▇▇▇▇▇ as promptly as practicable but in any event no later than the fifth Business Day following the Conversion Date. If, however, the Company elects to make any portion of such payment in cash, then the payment, including any delivery of shares of Common Stock, shall be made to Holders surrendering ▇▇▇▇▇ no later than the tenth Business Day following the Conversion Date. The Company may not pay cash in lieu of delivering all or part of such shares of Common Stock upon the conversion of such Holder’s Notes shall be required to provide 61 days’ written notice any LYON pursuant to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt terms of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert Indenture (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus other than cash in lieu of fractional shares) if there has occurred (prior to, on or after, as the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventcase may be, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on Date or the date of occurrence of on which the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Company delivers its notice specifying whether each Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes converted into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or cash) and is continuing an Event of Default (other than a default in such payment on such ▇▇▇▇▇). A Holder may convert a portion of a LYON if the Principal Amount at Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment shall be made for dividends on the Common Stock except as provided in the Indenture. On conversion of a LYON, except as otherwise provided in the Second Supplemental Indenture, accrued Original Issue Discount attributable to the period from the Issue Date through the Conversion Date with respect to the converted LYON shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be an “affiliate” paid in full to the Holder thereof through delivery of the Company Common Stock (together with the cash payment, if any, in lieu of fractional shares), or cash in lieu thereof, in exchange for purposes the LYON being converted pursuant to the provisions hereof, and the fair market value of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received (together with any such cash payment in lieu of fractional shares), or cash in lieu thereof, shall be treated as issued in exchange for the Issue Price of the LYON being converted pursuant to the provisions hereof. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the Sale Price of the Common Stock on the Trading Day immediately prior to the Conversion Date. To convert a LYON, a Holder must (a) complete and manually sign the conversion notice set forth below and deliver such conversion.
notice to a Conversion Agent, (fb) At surrender the request LYON to the Conversion Agent, (c) furnish appropriate endorsements and transfer documents (including any certification that may be required under applicable law) if required by the Conversion Agent, and (d) pay any transfer or similar tax, if required. Repurchase by the Company at the Option of any the Holder Subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase, at the option of the Holder, the Company will use its reasonable efforts to cooperate with ▇▇▇▇▇ held by such Holder on the following Repurchase Dates and at the following Repurchase Prices per $1,000 Principal Amount at Maturity of such ▇▇▇▇▇, upon delivery of a Repurchase Notice containing the information set forth in the Indenture, at any time from the opening of business on the date that is at least 20 Business Days prior to confirm such Repurchase Date until the close of business on such Repurchase Date and upon delivery of the ▇▇▇▇▇ to the Paying Agent by the Holder as set forth in the Indenture. The Repurchase Price may be paid, at the option of the Company, in cash or by the issuance of Common Stock (as provided in the Indenture), or in any combination thereof. Holders have the right to withdraw any Repurchase Notice by delivering to the Paying Agent a written notice of withdrawal prior to the close of business on the Repurchase Date in accordance with brokers that the provisions of the Indenture. If cash (and/or securities if permitted under the Indenture) sufficient to pay the Repurchase Price of all ▇▇▇▇▇ or portions thereof to be purchased as of the Repurchase Date, is deposited with the Paying Agent on the Business Day following the Repurchase Date, immediately after such Repurchase Date, such LYON shall cease to be Outstanding, Original Issue Discount shall cease to accrue thereon, and the Holder will thereof shall have no other rights as such (other than the right to receive the Repurchase Price upon surrender of such LYON). Conversion Arrangement on Call for Redemption Any ▇▇▇▇▇ called for redemption, unless surrendered for conversion before the close of business on the Redemption Date, may be deemed to be purchased from the Holders of such ▇▇▇▇▇ at an amount not be an “affiliate” less than the Redemption Price by one or more investment bankers or other purchasers who may agree with the Company to purchase such ▇▇▇▇▇ from the Holders, to convert them into Common Stock of the Company and to make payment for purposes of such ▇▇▇▇▇ to the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Paying Agent in trust for such Holders.
Appears in 1 contract
Conversion. (ai) At any time following Conversions at Option of Holder. Each share of Preferred Stock ------------------------------- shall be convertible into shares of Common Stock (subject to the receipt limitations set forth in Section 5(a)(iii)), at the Conversion Ratio (as defined in Section 8), at the option of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, Holder at any time and from time to timetime from and after July 28, 1999 (the "Initial Conversion Date"); provided, that, (A) on and after ----------------------- -------- the Initial Conversion Date, a Holder shall only be entitled to convert up to 25% of the number of shares of Preferred Stock issued to it on the Original Issue Date, (B) on and after the first month anniversary of the Initial Conversion Date, a Holder shall only be entitled to convert up to 50% of the number of shares of Preferred Stock issued to it on the Original Issue Date, on any Business Daya cumulative basis, (C) on and after the second month anniversary of the Initial Conversion Date, a Holder shall only be entitled to convert up to 75% of the number of shares of Preferred Stock issued to it on the Original Issue Date, on a cumulative basis and (D) on and after the third month anniversary of the Initial Conversion Date, a Holder shall be entitled to convert all of the shares of Preferred Stock originally issued to it on the Original Issue Date. Holders shall effect conversions by surrendering the certificate or certificates representing the shares of Preferred Stock to be converted to the Compnay, together with the form of conversion notice attached hereto as Exhibit A (a --------- "Conversion Notice"). Each Conversion Notice shall specify the number of shares ----------------- of Preferred Stock to be converted and the date on which such conversion is to be effected, which date may not be prior to the earliest of date the Holder delivers such Conversion Notice by fascimile (1) if applicable, with respect to the "Conversion Date"). If no Conversion Date --------------- is specified in a Note called for redemptionConversion Notice, the close Conversion Date shall be the date that the Conversion Notice is deemed delivered hereunder. If the Holder is converting less than all shares of business on Preferred Stock represented by the Business Day immediately preceding certificate or certificates tendered by the Redemption Date Holder with the Conversion Notice, or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at if a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash hereunder cannot be effected in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that full for any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendmentreason, the Company shall convert promptly deliver to such Holder (in the “Mandatory Conversion”manner and within the time set forth in Section 5(b)) any outstanding Notes into a certificate representing the number of shares of Common Preferred Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) as have not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being been converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Convertible Preferred Stock Purchase Agreement (Number Nine Visual Technology Corp)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior Notwithstanding anything in this Agreement to the earliest contrary, so long as no Event of (1) if applicableDefault has occurred and is continuing, Seller shall be permitted to consummate a Foreclosure Event with respect to any Purchased Asset and convert the related Mortgage Loan to a Note called for redemption, the close of business loan secured by a Mortgage or Mortgages on the Business Day immediately preceding related Mortgaged Property or Mortgaged Properties for the Redemption Date or benefit of Buyer (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “REO Conversion”). Any such REO Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to occur upon and simultaneous with the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06Foreclosure Event.
(b) Following the receipt With respect to any Mandatory Early Repurchase Event or REO Conversion, as of the Required Stockholder Approval and the effectiveness of the Charter Amendmentdate such Mandatory Early Repurchase Event occurs or such REO Conversion is consummated, the Company Maximum Mandatory Early Repurchase/REO Conversion Test shall convert (be satisfied. In the “event the Maximum Mandatory Conversion”) any Early Repurchase/REO Conversion Test is not satisfied as of such date, then Seller shall reduce the outstanding Notes into a number Purchase Price of shares Purchased Assets that experience Mandatory Early Repurchase Events or are the result of Common Stock per $1,000 principal amount of Notes equal REO Conversions, as determined by Seller, to cause the Maximum Mandatory Early Repurchase/REO Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal Test to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”)be satisfied. Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.4918-1599-2897v.6
(c) Interest With respect to any Purchased Asset that is the subject of a REO Conversion, the related Repurchase Date shall cease to accrue on any Notes on be the date (or if such date is not a Business Day, then the next succeeding Business Day) which is three hundred sixty (360) days after the Business Day on which the REO Conversion is effective minus the number of occurrence calendar days (if any) that such Purchased Asset was the subject of a Mandatory Early Repurchase Event immediately prior to the consummation of the Optional Conversion or the Mandatory REO Conversion (i.e. if such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant Purchased Asset was not subject to an Optional Conversion or a Mandatory Conversion shall be added Early Repurchase Event prior to the principal amount of such Note being convertedBusiness Day on which the REO Conversion is effective, then the Repurchase Date will be three hundred sixty (360) days after the Business Day on which the REO Conversion is effective).
(d) If a Holder exercises its right On the Business Day on which the REO Conversion is effective, Seller shall be required to require reduce the Company outstanding Purchase Price of the related Purchased Asset to repurchase its Notes pursuant an amount that is equal to a Prepayment Offer or a Change Purchase Price LTV equal to fifty percent (50%), which amount shall be notified by Buyer to Seller. Thereafter, for all purposes of Control Offer in accordance this Agreement, the Purchase Price Percentage of such Purchased Asset shall not exceed fifty percent (50%). Simultaneously with Section 4.10 or Section 4.15the REO Conversion, respectivelyBuyer and Seller shall execute an amended and restated Confirmation reflecting, among other items, such Holder may convert its Notes into Common Stock only if it withdraws its election updated Purchase Price and Purchase Price Percentage and the updated Applicable Spread with respect to have its Notes repurchased such Purchased Asset. If the Purchased Asset Documents for the Purchased Asset after the REO Conversion is effective require Seller to make any future funding advance of loan proceeds to the related REO Owner (as defined below), Buyer shall in no event be obligated to fund additional advances with respect to the Purchase Price of such Purchased Asset in connection with such Prepayment Offer or Change of Control Offerfuture funding advances to the REO Owner unless Buyer has agreed in its sole discretion to make such additional advances as reflected in the amended and restated Confirmation executed in connection with the REO Conversion, in which case, any such future funding advances shall be made in accordance with Article 3(e)(iii).
(e) In An REO Conversion shall not be permitted to occur unless the event ownership and structure of the Mortgagor and the documentation for and any third party reports with respect to the Purchased Asset in effect after the effective date of the REO Conversion are in form and substance reasonably acceptable to Buyer. Such ownership, structure and documentation shall include, without limitation, the following components:
(i) the Mortgaged Property will be owned by a special purpose entity (“REO Owner”) formed for the sole purpose of taking ownership of such Mortgaged Property (whether by assignment of the winning bid by Seller at foreclosure sale, by deed of lieu of foreclosure or otherwise) that is directly or indirectly wholly owned and controlled by Guarantor and that is otherwise consistent with the Change of Control definition, as evidenced by delivery of an organizational chart for the REO Owner showing all direct or indirect equityholders of the REO Owner that either Control the REO Owner or hold 10% or more of the entity interest in the REO Owner, directly or indirectly;
(ii) Buyer is granted a first priority security interest in the equity ownership interest in the REO Owner pursuant to an equity pledge agreement; 4918-1599-2897v.6
(iii) the Purchased Asset Documents for the Purchased Asset after the REO Conversion is effective shall be based upon the Purchased Asset Documents for the Purchased Asset immediately prior to the REO Conversion (which shall include, without limitation, guaranties to be delivered by a creditworthy guarantor reasonably approved by Buyer (the “REO Guarantor”)) with such changes thereto as are reasonably acceptable to Buyer and shall be delivered to Custodian (it being understood and agreed that the outstanding principal balance of the Mortgage Loan after the REO Conversion will match the unpaid principal balance of the Mortgage Loan at the time of the Foreclosure Event);
(iv) the Mortgage securing the Mortgaged Property shall be in recordable form, shall be recorded, if requested by ▇▇▇▇▇, and shall be insured by an ALTA lender’s title insurance policy, or its equivalent as adopted in the applicable jurisdiction, insuring Seller together with its successors and assigns, subject only to the title exceptions that were included in the lender’s title insurance policy that was delivered in connection with the origination of each Purchased Asset (and any Holder notified other exceptions that are reasonably acceptable to Buyer);
(v) Buyer shall have received an executed certificate from the Company secretary or assistant secretary of each of the REO Owner and the REO Guarantor, together with all applicable attachments, certifying that attached thereto are (1i) true, correct and complete certificate or articles of formation or organization (or other charter document), including all amendments thereto, of REO Owner and REO Guarantor, certified as of a recent date by the Secretary of State of the state of its organization or formation; (ii) true, correct and complete limited liability company agreement, and including all amendments thereto, of REO Owner and REO Guarantor, (iii) the names of the officers authorized to sign the Purchased Asset Documents and their true signatures; (iv) true, correct and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body);
(vi) Buyer shall have received a copy of the related foreclosure deed, deed in lieu of foreclosure or assignment in lieu of foreclosure, as the case may be;
(vii) in each case to the case extent reasonably requested by ▇▇▇▇▇, ▇▇▇▇▇ shall have received updated versions of an Optional Conversion the third party reports referenced on the Due Diligence Checklist;
(viii) ▇▇▇▇▇ shall have received legal opinions from counsel to REO Owner and REO Guarantor in substance similar to the legal opinions delivered in connection with the closing of the Purchased Asset;
(ix) Buyer shall have received evidence reasonably satisfactory to Buyer that all insurance coverage required to be in place pursuant to Section 12.01(a), at any time beginning on the related Purchased Asset Documents with respect to the Mortgaged Property are in effect as of the date of the provision REO Conversion;
(x) Buyer shall have received an amended and restated Confirmation executed by Seller reflecting the REO Conversion of the Optional Conversion Notice Purchased Asset and ending with including representations and warranties from Article 9 of this Agreement applicable to the effectiveness of REO Owner; and
(xi) Buyer shall have received such Optional Conversion, other and (2) further documents and documentation as Buyer in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined its sole discretion exercised in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.good faith shall require. 4918-1599-2897v.6
(f) At Concurrently with the request of any HolderREO Conversion, unless otherwise set forth in the Company will use its reasonable efforts related Confirmation, (i) Seller shall establish an account into which all Income received with respect to cooperate with such Holder the Purchased Asset shall be deposited, which account shall be subject to confirm with brokers that such Holder will not be an “affiliate” of account control agreement in form and substance satisfactory to Buyer, (ii) all reserves or other amounts held by the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion REO Owner or pursuant to Section 12.01(athe Purchased Asset Documents (other than Income described in the preceding clause (i)) shall be directed to an account under ▇▇▇▇▇’s control or Mandatory Conversion pursuant held with Servicer and (iii) Seller shall pay to Section 12.01(b).Buyer all of Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees of outside counsel) incurred in connection therewith. 4918-1599-2897v.6
Appears in 1 contract
Sources: Master Repurchase Agreement (Principal Credit Real Estate Income Trust)
Conversion. Immediately following (aand subject) At any time following to the receipt of approval by the Required Stockholder Approval and Company's stockholders, at the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert annual 2000 stockholders meeting (the “Optional Conversion”"Annual 2000 Meeting"), of a proposal to increase the authorized shares of Common Stock, par value, $0.001 (hereinafter, the "Common Stock") their outstanding Notes, at any time and that the Company is authorized to issue from time to time, on any Business Day, prior time (such proposal hereafter referred to as the earliest of (1) if applicable, with respect to a Note called for redemption"Increase in Authorized Common"), the close principal amount of business on the Business Day immediately preceding outstanding Debentures shall, without any further action, convert into shares of Common Stock of the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, Company at a conversion rate per share equal to $2 (hereinafter, the “"Conversion Rate”) of 81.2 shares per $1,000 principal amount Shares"). Additionally, at time of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) issuance of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentShares, the Company shall convert issue to the undersigned a warrant, in the form annexed hereto as Appendix II, (hereinafter, the “Mandatory Conversion”"Warrant") any outstanding Notes into a to purchase up to such number of shares of Common Stock per $1,000 principal amount of Notes as shall be equal to the number of Conversion Rate then in effect (plus cash in lieu of fractional shares) if Shares issued at the Daily VWAP time of the Common Stock exceeds or is Conversion at a per share exercise price equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days $3.50 (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received issuable or issued under such Warrant being referred to hereafter as the "Warrant Shares"). The Company represents that the Annual 2000 Meeting is currently scheduled for September 20, 2000 and undertakes and covenants to hold the Annual 2000 Meeting by no later than November 15, 2000 and also undertakes and covenants to use its best efforts to cause to be adopted at such meeting the proposal relating to the Increase in Authorized Common. The Company may, at any time commencing after the end of the twelve month period following the issuance of the Warrant and upon such conversion.
delivery of a notice of redemption to the holder hereof (f) At the request of any Holderhereafter, the Company will use its reasonable efforts "Notice of Redemption") redeem (to cooperate with such Holder to confirm with brokers that such Holder will the extent not be an “affiliate” then exercised) the Warrant for $.10 per Warrant share if the underlying common stock issuable upon exercise of the Company for purposes of Warrant is covered by an effective registration statement on Form SB-2 (or any other appropriate form) under the Securities Act and/or of 1933, as amended (hereinafter, the Exchange Act "Act"), and the Company's common shares have traded at or above 200% of the exercise price for a period of twenty consecutive trading days immediately preceding the date on which the Notice of Redemption is deposited or transmitted; provided, that, the provisions relating to such redemption shall apply only upon any Optional Conversion pursuant (and following) the approval by the Company's stockholders at the Annual 2000 Meeting of the Increase in Authorized Common and, provided, further, that, notwithstanding the foregoing, the Holder may exercise within seven (7) business days following delivery to Section 12.01(athe Holder of the Notice of Redemption the Warrant (in part or in full) or Mandatory Conversion pursuant to Section 12.01(b)by payment in immediately available funds of the amount reflecting such exercise of the Warrant.
Appears in 1 contract
Conversion. The Purchaser or any subsequent holder or holders (aHolder(s) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendmentthis Note is entitled, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notesat its option, at any time and from time in whole or in part, until maturity hereof (as extended by Holder(s)) to time, convert the principal amount of this Note or any portion of the principal amount hereof into Shares of Common Stock at lower of (a) the average of the closing bid price (Closing Bid Price) of the Company's Common Stock for the five-day trading period ending on any Business Day, the day prior to the earliest Effective Date (Average Price) times (x) 70 % (Multiplier); or (b) the Closing Bid Price on the Closing Date times (x) the Multiplier. In the event a Registration Statement Amendment covering the Conversion Shares is not filed by the Filing Date Deadline and/or shall not become effective by the Effective Date Deadline the Multiplier shall be reduced five percentage points (a) for the first month or part thereof after the Filing Date Deadline that the Registration Statement Amendment has not been filed; and/or (b) for the first month of part thereof after the Effective Date Deadline that the Registration Statement Amendment has not become effective; and the Multiplier shall be reduced two percentage points for each additional month or part thereof commencing one month after the Effective Date Deadline, for up to two years from the Closing Date, that the Registration Statement Amendment has not been made effective with a current prospectus available, or the Registration Statement Amendment ceases to be effective with a current prospectus available; or the Conversion Shares cannot be sold pursuant to SEC Rule 144 (1d) if applicable(subject only to Form 144 filing, with respect to a Note called for redemptionmanner of sale and volume limitation provisions of Rule 144). For purposes of this Note, the close Closing Bid Price shall be the closing bid price of business the Common Stock as reported by the National Association of Securities Dealers Automated Quotation System Level II (Nasdaq), or the closing bid price in the over-the-counter market; or, in the event the Common Stock is listed on a stock exchange, the closing bid price value per share shall be the closing price on the Business Day immediately preceding exchange, as reported in the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional Wall Street Journal. The shares of Common Stock in accordance issued upon conversion of the Note are herein referred to as Conversion Shares. Such conversion shall be effectuated by surrendering the Note to be converted to the Escrow Agent, with Section 12.03the form of Conversion Notice attached hereto as Exhibit 1, executed by the Holder(s) of this Note evidencing such Holder(s); provided that any Holder of Notes who would beneficially own ' intention to convert this Note or a specified portion hereof (as determined above provided). The Effective Date shall be the date set forth on the Conversion Notice, provided such Conversion Notice is received by the Escrow Agent and the Company, via U.S. mail, overnight courier, hand delivery or facsimile, no later than the fifth business day after such date. Upon recording the amount converted and amount of indebtedness remaining under the Note, set forth in accordance with Section 13(d) the Conversion Notice on the grid comprising the last page of the Exchange Act and Note (Principal Reduction Grid), the rules and regulations promulgated thereunder) in excess of 9.99% Escrow Agent shall send a copy of the outstanding revised Principal Reduction Grid to the Company and shall send a copy of the revised Principal Reduction Grid to the Holder(s). Escrow Agent shall also deliver the Conversion Shares to Holder(s) The Company has authorized and has reserved and covenants to continue to reserve, free of preemptive rights and other similar contractual rights of stockholders, a sufficient number of its authorized but unissued shares of Common Stock upon to satisfy the rights of conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
holder or holders (b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”Holder(s). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionthis Note.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following Subject to the receipt provisions of this paragraph 10 and the Indenture, if, as of the Required Stockholder Approval and last day of any calendar quarter beginning with the effectiveness quarter ended September 30, 2001, the closing Sale Price of the Charter Amendment, Holders Common Stock for at least 20 trading days in a period of 30 consecutive trading days ending on the last trading day of such calendar quarter is more than 110% of the Notes shall have Conversion Price, then on and after the right first day of the immediately succeeding quarter, a Holder may convert (the “Optional Conversion”) their outstanding Notes, this Security into Common Stock at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, until the close of business on the second Business Day immediately preceding Stated Maturity. If the Redemption Date Company is a party to a consolidation, merger or (2) binding share exchange pursuant to which Common Stock would be converted into cash, securities or other property, or sale of all or substantially all of the Company's assets, this Security may be surrendered for conversion at any time from and after the date which is 15 days prior to the anticipated effective date of the transaction until 15 days after the actual date of such transaction and, at the effective time, the right to convert this Security into shares of Common Stock will be changed into a right to convert it into the kind and amount of cash, securities or other property of the Company or another person which the Holder would have received if the Holder had converted this Security immediately prior to the transaction. If this Security or any part hereof is subject to redemption by the Company in accordance with paragraph 6 hereof, a Holder may convert this Security into Common Stock at any time until the close of business on the second Business Day immediately preceding the Maturity related Redemption Date, into Common Stock, at . A Security in respect of which a conversion rate (Holder has delivered a Purchase Notice exercising the “Conversion Rate”) option of 81.2 shares per $1,000 principal amount such Holder to require the Company to purchase such Security may be converted only if such notice of the Notes (plus cash in lieu of fractional shares of Common Stock exercise is withdrawn in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) the terms of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionIndenture. The initial Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of 13.09504 shares of Common Stock per $1,000 principal amount Principal Amount, subject to adjustment for certain events described in the Indenture or this paragraph 10. The Conversion Price is, as of Notes equal to any date of determination, the Principal Amount hereof divided by the Conversion Rate then in effect effect. The Company will deliver cash or a check in lieu of any fractional share of Common Stock. To convert a Security, a Holder must (plus 1) complete and manually sign the conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar tax, if required. A Holder may only convert a portion of a Security pursuant to the terms of this paragraph 10 and in accordance with the Indenture if the Principal Amount of such portion is $1,000 or any integral multiple of $1,000. No payment or adjustment will be made for dividends on the Common Stock except as provided herein and in the Indenture. On conversion of a Security, that portion of accrued Tax Original Issue Discount attributable to the period from the Issue Date through the Conversion Date and (except as provided above) accrued contingent interest with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through the delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares) in exchange for the Security being converted pursuant to the terms hereof; and the fair market value of such shares of Common Stock (together with any such cash payment in lieu of fractional shares) shall be treated as issued, to the extent thereof, first in exchange for Tax Original Issue Discount and accrued contingent interest, and the balance, if any, of such fair market value of such Common Stock (and any such cash payment) shall be treated as issued in exchange for the Daily VWAP Issue Price of the Security being converted pursuant to the provisions hereof. The Conversion Rate, in accordance with the provisions of the Indenture, will be adjusted for dividends or distributions on Common Stock payable in Common Stock or other Capital Stock; subdivisions, combinations or certain reclassifications of Common Stock; distributions to all holders of Common Stock of certain rights to purchase Common Stock for a period expiring within 60 days of such distribution at less than the Sale Price of the Common Stock exceeds at the Time of Determination; and distributions to such holders of assets or is equal debt securities of the Company or certain rights to purchase securities of the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days Company (the “Mandatory Conversion Event”excluding certain cash dividends or distributions). Upon However, no adjustment need be made if Securityholders may participate in the occurrence transaction or in certain other cases. The Company from time to time may voluntarily increase the Conversion Rate. If the Company is a party to a consolidation, merger or binding share exchange or a transfer of all or substantially all of its assets, or upon certain distributions described in the Mandatory Conversion EventIndenture, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to convert a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes Security into Common Stock only if may be changed into a right to convert it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer into securities, cash or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” other assets of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder or another person. The Conversion Rate will not be an “affiliate” of the Company adjusted for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)contingent interest.
Appears in 1 contract
Sources: Indenture (Novellus Systems Inc)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior Subject to the earliest of (1) if applicableprocedures for conversion set forth in the First Supplemental Indenture, with respect to a Note called for redemption, Holder may convert its Notes until the close of business on the earliest of (i) the fifth Business Day immediately preceding following the Redemption Date or date of an Issuer’s Conversion Notice for such Notes delivered in accordance with Section 11.09 of the Indenture, (2ii) if such Notes are called for redemption in accordance with Section 6.01 of the close of business on Indenture, the Business Day immediately preceding the Maturity applicable Redemption Date, into Common Stockand (iii) the second Business Day immediately preceding the Stated Maturity. The Company may, at a conversion rate (its option, elect to convert the “Conversion Rate”) of 81.2 shares per $1,000 principal amount Notes in whole or in part at any time if the Last Reported Sale Price of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99has equaled or exceeded 125% of the outstanding shares Conversion Price then in effect for at least 20 Trading Days in any 30 Trading Day period, by sending (or having the Trustee send) an Issuer’s Conversion Notice no later than the opening of Common Stock upon conversion business on the third Business Day immediately following the 20th Trading Day of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion30 Trading Day period. The initial Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of 500.00 shares of Common Stock per $1,000 principal amount Original Principal Amount of Notes equal Notes, subject to adjustment in certain events described in the First Supplemental Indenture. As set forth in the First Supplemental Indenture, upon conversion, the Company will deliver shares of Common Stock based on the Conversion Rate then but may elect to satisfy its Conversion Obligation by (i) paying cash or (ii) paying cash and shares of Common Stock, and, in effect each case, pay an amount of cash equal to accrued and unpaid interest to (plus and including) the Conversion Date. The Company shall deliver cash in lieu of any fractional shares) share of Common Stock. A Holder may convert a portion of the Notes only if the Daily VWAP Original Principal Amount of such portion is $1,000 or an integral multiple of $1,000 in excess thereof. No payment or adjustment shall be made for dividends on the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) except as provided in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionFirst Supplemental Indenture.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: First Supplemental Indenture (Goodrich Petroleum Corp)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes The Securityholders shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time on or after ________, 2002 and from time to time, on any Business Day, prior to the earliest of (1) if applicable5:00 pm, with respect to a Note called for redemptionNew York, the close of business New York time on the Business Day immediately preceding the Redemption Date date of repayment of such Trust Securities, whether at maturity or upon redemption (2either at the option of the Depositor or pursuant to a Tax Event, an Investment Company Event or a Capital Treatment Event), at their option, to cause the Conversion Agent to convert Trust Securities, on behalf of the converting Holders, into shares of the Common Stock in the manner described herein on and subject to the following terms and conditions:
(a) The Trust Securities shall be convertible at the close office of business the Conversion Agent into fully paid and nonassessable shares of Common Stock pursuant to the Holder's direction to the Conversion Agent to exchange such Trust Securities for a portion of the Debentures theretofore held by the Trust on the Business Day basis of one Trust Security per $10 principal amount of Debentures, and immediately preceding convert such amount of Debentures into fully paid and nonassessable shares of Common Stock of the Maturity DateDepositor at an initial conversion rate of __________ shares of Common Stock per $10 principal amount of Debentures (which is equivalent to an initial conversion price of $__________ per share of Common Stock), subject to certain adjustments set forth in the terms of the Debentures (as so adjusted, the "Conversion Ratio"). The number of shares issuable upon conversion of the principal amount of Debentures shall be determined by dividing such principal amount by __ and multiplying the quotient so obtained by the Conversion Ratio.
(b) In order to convert Trust Securities into Common Stock, at a conversion rate the Holder must submit to the Conversion Agent an irrevocable request to convert Trust Securities on behalf of such Holder (the “"Conversion Rate”Request"), together, if the Trust Securities are in certificated form, with such Trust Security Certificates. The Conversion Request shall (i) set forth the number of 81.2 Trust Securities to be converted and the name or names, if other than the Holder, in which the shares per $1,000 of Common Stock should be issued, and (ii) direct the Conversion Agent (A) to exchange such Trust Securities for a portion of the Debentures held by the Trust (at the rate of exchange specified in Section 402A(a) hereof), and (B) to immediately convert such Debentures on behalf of such Holder into Common Stock (at the Conversion Ratio specified in Section 402A(a) hereof. The Conversion Agent shall notify the Trust of the Holder's election to exchange Trust Securities for a portion of the Debentures held by the Trust and the Property Trustee on behalf of the Trust shall, upon receipt of such notice, deliver to the Conversion Agent the appropriate principal amount of Debentures for exchange in accordance with this Section 402A. The Conversion Agent shall thereupon notify the Notes Depositor of the Holder's election to convert such Debentures into shares of Common Stock.
(plus c) Accrued Distributions shall not be paid on Preferred Securities that are converted into Common Stock, nor shall any payment, allowance or adjustment be made for accumulated and unpaid Distributions, whether or not in arrears, on converted Preferred Securities, except that if any Preferred Security is converted (i) on or after a record date for payment of Distributions thereon and prior to the related Distribution Date, the amount of the Distributions payable on the related Distribution Date with respect to such Preferred Security shall be paid by the converting Holder to the Trust and the Distributions payable on the related Distribution Date with respect to such Preferred Security shall be distributed to the Holder on such record date, despite such conversion, and (ii) during an Extended Interest Payment Period and after the Property Trustee mails a notice of redemption with respect to the Preferred Securities that are to be converted, accrued and unpaid Distributions through the Redemption Date of the Debentures shall be distributed to the Holder who converts such Preferred Securities, which Distribution shall be made on the Redemption Date fixed for redemption. Except as provided above, neither the Trust nor the Depositor shall make, or be required to make, any payment, allowance or adjustment upon any conversion on account of any accumulated and unpaid Distributions accrued on the Trust Securities (including any Additional Amount) surrendered for conversion, or on account of any accumulated and unpaid dividends, if any, on the shares of Common Stock issued upon such conversion. The Depositor shall make no payment or allowance for distributions on the shares of Common Stock issued upon such conversion, except to the extent that such shares of Common Stock are held of record on the record date for any such distributions and except as provided in Section 4.9 of the Indenture. Trust Securities shall be deemed to have been converted immediately prior to 5:00 p.m., New York, New York time on the day on which a Conversion Request relating to such Trust Securities is received by the Trust in accordance with the foregoing provisions of this Section 402A (the "Conversion Date"). The Person or Persons entitled to receive the Common Stock issuable upon conversion of the Debentures shall be treated for all purposes as the record holder or holders of such Common Stock at such time. As promptly as practicable on or after the Conversion Date, the Depositor shall issue and deliver at the office of the Conversion Agent a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion, together with the cash payment, if any, in lieu of fractional any fraction of any share to the Person or Persons entitled to receive the same as provided in Section 402A(e) hereof, unless otherwise directed by the Holder in the Conversion Request, and the Conversion Agent shall distribute such certificate or certificates to such Person or Persons.
(d) Each Holder of a Trust Security by his acceptance thereof appoints the Bank (the "Conversion Agent") for the purpose of effecting the conversion of Trust Securities in accordance with this Section 402A. In effecting the conversion and transactions described in this Section 402A, the Conversion Agent shall be acting as agent of the Securityholders directing it to effect such conversion transactions. The Conversion Agent is hereby authorized (i) to exchange Trust Securities from time to time for Debentures held by the Trust in connection with the conversion of such Trust Securities with this Section 402A, and (ii) to convert all or a portion of the Debentures into Common Stock and thereupon to deliver such shares of Common Stock in accordance with the provisions of this Section 12.03); provided that 402A and to deliver to the Trust a new Debenture or Debentures for any Holder of Notes who would beneficially own resulting unconverted principal amount.
(as determined in accordance with Section 13(de) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding No fractional shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice issued as a result of conversion, but in lieu thereof, such fractional interest shall be paid in cash (based on the last reported sale price of the common Stock on the Conversion Date) by the Depositor to the Company prior Trust, which in turn shall make such payment to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06the Holder or Holders of Trust Securities so converted.
(bf) Following The Depositor shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the receipt conversion of the Required Stockholder Approval and the effectiveness of the Charter AmendmentDebentures, the Company shall convert (the “Mandatory Conversion”) free from any outstanding Notes into a preemptive or other similar rights, such number of shares of Common Stock per $1,000 principal amount as shall from time to time be issuable upon the conversion of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP all of the Common Stock exceeds or is equal to Debentures then outstanding. Notwithstanding the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventforegoing, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion Depositor shall be added entitled to the principal amount deliver, upon conversion of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15Debentures, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” reacquired and held in the treasury of the Company for purposes Depositor (in lieu of the Securities Act and/or issuance of authorized and unissued shares of Common Stock), so long as any such treasury shares are free and clear of all liens, charges, security interests or encumbrances. Any shares of Common Stock issued upon conversion of the Exchange upon such conversionDebentures shall be duly authorized, then the Company will promptly enter into a Registration Rights Agreement covering validly issued, fully paid and nonassessable. The Trust shall deliver the shares of Common Stock of the Depositor received upon conversion of the Debentures to the converting Holder free and clear of all liens, charges, security interests and encumbrances, except for United States withholding taxes. Each of the Depositor and the Trust shall prepare and shall use its best efforts to obtain and keep in force such conversiongovernmental or regulatory permits or other authorizations as may be required by law, and shall comply with all applicable requirements as to registration or qualification of the Common Stock (and all requirements to list the Common Stock issuable upon conversion of Debentures that are at the time applicable), in order to enable the Depositor to lawfully issue Common Stock to the Trust upon conversion of the Debentures and the Trust to lawfully deliver the Common Stock to each Holder upon conversion of the Trust Securities.
(fg) At The Depositor shall pay any and all taxes that may be payable in respect of the request issue or delivery of shares of Common Stock on conversion of Debentures and the delivery of the shares of Common Stock by the Trust upon conversion of the Trust Securities. The Depositor shall not, however, be required to pay any tax that may be payable in respect of any Holdertransfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the Trust Securities so converted were registered, and no such issue or deliver shall be made unless and until the Company will use its reasonable efforts person requesting such issue has paid to cooperate with the Trust the amount of any such Holder tax or has established to confirm with brokers that such Holder will not be an “affiliate” the satisfaction of the Company for purposes Trust that has been paid.
(h) Nothing in this Section 402A shall limit the requirements of the Securities Act and/or the Exchange Act upon any Optional Conversion Trust to withhold taxes pursuant to Section 12.01(a) the terms of the Trust Securities or Mandatory Conversion pursuant as set forth in this Trust Agreement or otherwise require the Property Trustee or the Trust to Section 12.01(b)pay any amount on account of such withholdings.
Appears in 1 contract
Sources: Trust Agreement (Southern Community Capital Trust I)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment1 A Holder is entitled, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notesat its option, at any time and from time to timeon or after the close of business on January 1, on any Business Day1998, prior to the earliest of (1) if applicable, with respect to or in case a Note Debenture is called for redemption by the Company, or the Holder elects to have such Debenture redeemed by the Company pursuant to Section 3(c), then in respect of such Debenture until and including, but (unless the Company defaults in making the payment due upon redemption) not after, the close of business on the Business Day immediately date that is 5 days (or if such day is a non-business day as described in Section 10 in New York City, then the next business day) preceding the Redemption Date or (2) date fixed for redemption, to convert such Debenture into the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, Reserved Post Recoupment Percentage Interest at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 price equal to an outstanding aggregate unpaid principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Debentures held by such Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) by surrender of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentDebenture, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion Debenture submitted for redemption pursuant to Section 12.01(b3(c), at any time beginning satisfactory evidence of such submission, together with the date conversion notice hereon duly executed at the office of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of Company. Upon any such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such establish a capital account for the Holder to confirm with brokers that such Holder will not be an “affiliate” in the amount of the Company for purposes aggregate unpaid principal amount of the Securities Act and/or Debenture converted by the Exchange Act Holder and including all unpaid and accrued interest, and the amount of the aggregate principal amount of the Debenture converted by the Holder shall thereupon become the Holder's Preferred Partner's Preferred Capital Amount under the Partnership Agreement and the amount of the unpaid and accrued interest on the Debenture converted by the Holder, if any, shall thereupon be included as the Preferred Partner's Aggregate Preference Amount in the determination of the Holder's Preferred Partner's Unrecovered Preferred Capital Amount going forward in the Partnership. Notwithstanding the preceding sentence of this Section 4(a) and the first sentence of Section 4(b), at its sole option upon any Optional Conversion pursuant such conversion, the Company may establish for the Holder a Preferred Partner's Unrecovered Preferred Capital Amount equal to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)the outstanding principal balance of this Debenture together with unpaid and accrued interest in lieu of paying interest thereon.
Appears in 1 contract
Conversion. (aSubject to subsection 1(d) At any time following below, the receipt of the Required Stockholder Approval unpaid principal balance and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert all accrued interest on this Note (the “Optional ConversionOutstanding Balance”), plus a premium of eleven percent (11%) their outstanding Noteson the Outstanding Balance (the “Premium”), at any time and from time to timeshall automatically convert into shares of Payor’s common stock, on any Business Daypar value $0.01 per share (“Common Stock”), immediately prior to the earliest effective time of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate merger (the “Conversion RateMerger”) to be effected pursuant to that certain Agreement and Plan of 81.2 shares per $1,000 principal amount Merger and Reorganization, dated October 31, 2016, by and among Payor, Signal Merger Sub, Inc., a wholly owned subsidiary of the Notes Payor (plus cash in lieu “Merger Sub”), and miRagen Therapeutics, Inc., a Delaware corporation (“miRagen”), whereby Merger Sub will merge with and into miRagen, Merger Sub will cease to exist, and miRagen will become a wholly-owned subsidiary of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionPayor. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount into which this Note is convertible (the “Conversion Shares”) shall be determined by dividing (i) the sum of Notes equal to the Outstanding Balance plus the Premium by (ii) the Conversion Rate then in effect (plus cash in lieu of fractional shares) if Price. The “Conversion Price” shall be $0.3594, which is the Daily VWAP closing market price of the Common Stock exceeds on the Nasdaq Capital Market on the Effective Date of this Amendment. The Conversion Price shall be subject to appropriate adjustment in the event of any reverse stock split, forward stock split, stock dividend, combination or is equal other similar recapitalization with respect to the Threshold Common Stock. In such event, the Conversion Price in effect immediately prior to the date on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory which such change is effective shall be adjusted by multiplying such Conversion Event”). Upon the occurrence of the Mandatory Conversion EventPrice by a fraction, the Company shall deliver notice to the Holders numerator of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount number of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise outstanding immediately prior to such change and the denominator of which shall be deemed to be an “affiliate” the number of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon outstanding immediately after giving effect to such change. Upon conversion.
(f) At , Payor will as soon as reasonably practicable issue the request of any Holder, the Company will use its reasonable efforts Conversion Shares via electronic book-entry and deliver a statement to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of evidence the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)share issuance.
Appears in 1 contract
Sources: Unsecured Demand Promissory Note (Signal Genetics, Inc.)
Conversion. (a) At any time following after May 30, 2001, Holders may surrender Securities for conversion into shares of Common Stock on a conversion date if, as of such conversion date, the receipt Quoted Price (as defined in the Indenture) of the Required Stockholder Approval and Common Stock for at least 20 trading days in the effectiveness 30 trading day period ending on the trading day prior to the conversion date is more than 110% of the Charter Amendmentconversion price per share of Common Stock on such conversion date. In addition, a Holder may surrender for conversion a Security which has been called for redemption pursuant to paragraph 5 hereof, even if the foregoing provisions has not been satisfied, and such Securities may be surrendered for conversion until the close of business on the day that is two Business Days prior to the Redemption Date. In the event that the Company declares a dividend or distribution described in Section 11.7 of the Indenture, or a dividend or distribution described in Section 11.8 of the Indenture where the fair market value of such dividend or distribution per share of Common Stock, as determined in the Indenture exceeds 15% of the current Market Price of the Common Stock as of the Trading Day immediately prior to the date of declaration, the Securities may be surrendered for conversion beginning on the date the Company gives notice to the Holders of such right, which shall be not less than 20 days prior to the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, ex-dividend time for such dividend or distribution and Securities may be surrendered for conversion at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, thereafter until the close of business on the Business Day immediately preceding prior to the Redemption Date ex- dividend time or until the Company announces that such distribution will not take place. Finally, in the event that the Company is a party to a consolidation, merger, transfer or lease of all or substantially all of its assets or a merger which reclassifies or changes its Common Stock pursuant to which the Common Stock would be converted into cash, securities or other assets as set forth in Section 11.17 of the Indenture, the Securities may be surrendered for conversion at any time from or after the date the Company announces as the anticipated effective time until 15 days after the actual date of such transaction (2) assuming, in a case in which the Company's stockholders may exercise rights of election, that a Holder of Securities would not have exercised any rights of election as to the stock, other securities or other property or assets receiveable in connection therewith and received per share the kind and amount received per share by plurality of nonelecting shares). The number of shares issuable upon conversion of a Security is determined by dividing the principal amount to be converted by the conversion price in effect on the conversion date, and rounding the result to the nearest 1/l00th of a share, with 500/1,000 of a share to be rounded up. Upon conversion, no payment or adjustment for accrued interest on a converted Security (other than the payment of interest to the Holder of a Security at the close of business on a record date pursuant to paragraph 2 hereof) or for dividends or distributions on the Business Day immediately preceding Common Stock will be made. The Company will deliver a check for any fractional share issuable upon conversion. A Security in respect of which a Holder has delivered a Purchase Notice or Change of Control Purchase Notice exercising the Maturity Date, into Common Stock, at a conversion rate (option of such Holder to required the “Conversion Rate”) Company to purchase such Security may be converted only if such notice of 81.2 shares per $1,000 principal amount exercise is withdrawn in accordance with the terms of the Notes Indenture. The initial conversion price is $65.1843 per share of Common Stock (plus cash expressed as such after giving effect to a two-for-one split of the Common Stock effective on May 30, 2001), subject to adjustment in certain events described in the Indenture. A Holder which surrenders Securities for conversion will receive a check in lieu of any fractional shares of Common Stock. To convert a Security, a Holder must (1) complete and sign the conversion notice on the reverse of the Security, (2) surrender the Security to the Conversion Agent, (3) furnish the appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, and (4) pay any tax or duty which may be payable in respect of any transfer involving the issue or delivery of Common Stock in accordance with Section 12.03the name of a Person other than the Holder thereof. A Holder may convert a portion of a Security if the portion is $1,000 or an integral multiple of $1,000. The conversion price will be adjusted for the issuance of capital stock of the Company as a dividend or distribution on its Common Stock; subdivisions, combinations or certain reclassifications of Common Stock; distributions to all holders of Common Stock of rights or warrants to purchase Common Stock at less than the current market price at the time; distributions to such holders of Common Stock of cash, debt securities (or other evidences of indebtedness) or other assets of the Company (excluding dividends or distributions for which adjustment is required to be made pursuant to another provision); certain dividends or other distributions consisting exclusively of cash to all holders of Common Stock; or for payments to holders of Common Stock pursuant to certain tender or exchange offers as provided in the Indenture. No adjustment in the conversion price will be required unless such adjustment would require a change of at least 1% in the conversion price then in effect; provided that any Holder of Notes who adjustment that would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall otherwise be required to provide 61 be made shall be carried forward and taken into account in any subsequent adjustment. However, no adjustment need be made if Securityholders are entitled to participate in certain of the above transactions or in certain other cases. The Company from time to time may voluntarily reduce the conversion price for a period of at least 20 days’ written notice to . If the Company prior is a party to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt a consolidation or merger, or a transfer or a lease of the Required Stockholder Approval and the effectiveness all or substantially all of the Charter Amendmentits assets or a merger which reclassifies or changes its outstanding Common Stock, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to convert a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes Security into Common Stock only if may be changed into a right to convert it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer into securities, cash or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” other assets of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionor another person.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Indenture (Baxter International Inc)
Conversion. (a) At any time following Upon the receipt Effective Date, each share of the Required Stockholder Approval Company Common Stock issued and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, immediately prior to the earliest Effective Date will, without any further action on the part of Fiserv or Fiserv Clearing, on the one hand, or the Company, on the other hand, be converted into the right to receive (the "Merger Consideration") directly (i) such number of shares of Fiserv Common Stock as shall equal the quotient (the "Exchange Ratio") of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2A) the close quotient of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”I) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.9951% of the ▇▇▇▇▇▇▇ Value (as hereinafter defined), divided by (II) the number of shares of Company Common Stock outstanding on the Effective Date, divided by (B) a number which is equal to the average closing price per share for Fiserv Common Stock as reported on the National Market System by National Association of Securities Dealers, Inc. Automated Quotations (as reported in The Wall Street Journal) for the 20 business days ending two business days prior to the Effective Date (the "Fiserv Share Value") and (ii) such amount of cash as shall equal the quotient of (A) 49% of the ▇▇▇▇▇▇▇ Value, divided by (B) the number of shares of Company Common Stock outstanding on the Effective Date. As of the Effective Date there will be no outstanding shares of Company Preferred Stock. All shares of Company Common Stock upon conversion and Company Preferred Stock held in the Company's treasury and, subject to Section 7.01(p), all outstanding unexercised stock options will be canceled. The names, addresses and number of such Holder’s Notes shall be required to provide 61 days’ written notice to shares of Company Common Stock owned on the date of this Agreement by the stockholders of the Company prior (the "Stockholders") is set forth on Schedule I to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06this Agreement.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal Not less than three days prior to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, Effective Date the Company shall deliver notice to the Holders Fiserv and Fiserv Clearing an estimated balance sheet of the Notes, Company as of the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion EventEffective Date, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer have been prepared in accordance with Section 4.10 or Section 4.15GAAP (as hereinafter defined) (the "Estimated Balance Sheet"), respectivelysetting forth, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change reasonable detail the Company's estimate of Control Offer.
(e) In the event that any Holder notified consolidated Stockholders' Equity for the Company and the Subsidiaries, but excluding any accruals for or payments of Taxes arising out of or related to the transactions contemplated hereby (1other than (x) a sale of assets or capital stock of a Subsidiary, (y) a sale of assets of the Company and (z) Taxes accrued in the case ordinary course of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date business of the provision of Company or any Subsidiary) (the Optional Conversion Notice and ending with "Stockholders' Equity"). As the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant only exception to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined preparation in accordance with Section 13(dGAAP, with respect to the New York Stock Exchange ("NYSE") seat currently held by Hanifen, Imhoff, Stockholders' Equity shall be calculated using the last published sale price of the Exchange Act NYSE for NYSE seats with option trading rights, rather than in accordance with GAAP. The "▇▇▇▇▇▇▇ Value" shall mean the sum of (i) difference (positive or negative) between (A) the Final Stockholders' Equity (as hereinafter defined) and the rules and regulations promulgated thereunder(B) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion$30,000,000, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionplus (ii) $97,200,000.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Merger Agreement (Fiserv Inc)
Conversion. (a) At any time following Subject to the receipt provisions of Article 11C of the Required Stockholder Approval Indenture, a Holder of a Debenture may convert such Debenture into the Cash Conversion Amount in cash payable by the Company, WPP, WPP Holdings and/or the WPP UK Partnership Partners and the effectiveness New WPP ADSs representing a number of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior New WPP Ordinary Shares equal to the earliest of (1) Stock Conversion Amount divided by the Conversion Price; provided, however, that if applicable, with respect to a Note such Debenture is called for redemption, the close of business conversion right will terminate on the second Business Day immediately preceding the Redemption Date or of such Debenture (2) unless the Company shall default in making the redemption payment when due, in which case the conversion right shall terminate at the close of business on the Business Day immediately preceding date such Default is cured and such Debenture is redeemed). The initial conversion price is $8.84 per New WPP Ordinary Share, subject to adjustment under certain circumstances as described in the Maturity Date, into Common Stock, at a conversion rate Indenture (the “Conversion RatePrice”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 issuable upon conversion of a Debenture prior to the Effective Time is determined by dividing the principal amount of Notes equal to Debentures converted by the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days the conversion date. The number of New WPP Ordinary Shares represented by New WPP ADSs issuable upon conversion of a Debenture from and after the Effective Time is determined by dividing (a) the “Mandatory Stock Conversion Event”)Amount by (b) the Conversion Price in effect on the conversion date. Upon conversion, no adjustment for interest (including Contingent Interest and Additional Amounts, if any), or dividends will be made. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid by the occurrence Company, WPP, WPP Holdings and/or the WPP UK Partnership Partners in cash based upon the current New WPP Market Price (as defined in the Indenture) of New WPP ADSs on the Mandatory last trading day prior to the date of conversion. To convert a Debenture, a Holder must (a) complete and sign the irrevocable conversion notice set forth below (copies of which may also be obtained from the Conversion Event, the Company shall Agent) and deliver such notice to the Holders Conversion Agent, (b) surrender the Debentures by delivering them to the Conversion Agent, at the office or agency maintained for such purpose in the Borough of Manhattan, The City of New York, (c) furnish appropriate endorsements and transfer documents if required by the NotesRegistrar or the Conversion Agent, (d) pay any transfer or similar tax, if required and (e) if the Trustee Debenture is held in book-entry form, complete and deliver to the Depositary appropriate instructions pursuant to the Depositary’s book-entry conversion programs. Upon satisfaction of such requirements, the Conversion Agent (if other than shall, on behalf of such Holder, immediately convert such Debentures into the Trustee) (such notice, Cash Conversion Amount and New WPP ADSs representing the number of New WPP Ordinary Shares described above. If a “Mandatory Conversion Notice”) not later than Holder surrenders a Debenture for conversion between the open record date for the payment of business on an installment of interest and the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) related Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such datePayment Date, the “Conversion Date”Debenture must be accompanied by payment of an amount equal to the interest (including Contingent Interest and Additional Amounts, if any). The accrued and unpaid interest , payable on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to such Interest Payment Date on the principal amount of the Debenture or portion thereof then converted; provided, however, that no such Note being converted.
(d) If payment shall be required if such Debenture has been called for redemption on a Redemption Date within the period between and including such record date and such Interest Payment Date, or if such Debenture is surrendered for conversion on the Interest Payment Date. A Holder may convert a portion of a Debenture equal to $1,000 or any integral multiple thereof. A Debenture in respect of which a Holder exercises its right has delivered a Holder Change of Control Acceptance Notice exercising the option of such Holder to require the Company to repurchase its Notes pursuant to a Prepayment Offer such Debenture as provided in Section 3.11 or a Change Purchase Acceptance Notice exercising the option of Control Offer such Holder to require the Company to repurchase such Debenture as provided in Section 3.16 of the Indenture may be converted only if such notice of exercise is withdrawn in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date terms of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionIndenture.”
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).Article III. WPP UK PARTNERSHIP PARTNERS AGREEMENT TO ASSUME
Appears in 1 contract
Conversion. 9.3.1 Subject to the provisions of this ARTICLE IX, the Securities shall be convertible (a) At any time following in whole or in part), at the receipt option of the Required Stockholder Approval Holder, into such number of fully paid and the effectiveness non-assessable shares of Common Stock as is determined by dividing (x) that portion of the Charter Amendment, Holders outstanding principal balance and accrued and unpaid interest on the portion of the Notes shall have outstanding principal balance that the right Holder elects to convert by (y) the Conversion Price then in effect on the date on which the Holder faxes a notice of conversion (the “Optional ConversionConversion Notice”), duly executed, to the Company (facsimile number (▇▇▇) their outstanding Notes▇▇▇-▇▇▇▇) (the “Voluntary Conversion Date”).
9.3.2 Subject to Section 9.2, at any time and from time to timeafter January 1, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption2010, the close Company may elect to cause all or a portion of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu Securities to convert into a number of fractional fully paid and nonassessable shares of Common Stock equal to the quotient of (i) the principal amount of the Securities divided by (ii) the Conversion Price in accordance with Section 12.03); provided that any Holder effect on the date of Notes who would beneficially own such conversion by providing five (5) days prior written notice to the Trustee and Holders of such Mandatory Conversion Date. Any such conversion shall be made pro-rata amongst all Holders of Securities. As used herein, a “Mandatory Conversion Date” shall be a date on which the Daily VWAP equals or has exceeded $0.50 (as determined in accordance with Section 13(dappropriately adjusted for stock splits, stock dividends, reorganizations, recapitalizations, stock combinations and the like) for each of the Exchange Act ten (10) consecutive prior Trading Days ending on the Trading Day immediately prior to such date; provided, that the Equity Conditions shall have been satisfied and the rules Common Stock shall have been Tradable on each Trading Day during the period beginning on the first day of such ten (10) day period and regulations promulgated thereunder) in excess of 9.99% ending on the date of the outstanding delivery of such shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice pursuant to the Company prior to any such mandatory conversion. The Mandatory Conversion Rate Date and the Voluntary Conversion Date collectively are referred to in this Indenture as the “Conversion Date”; provided, however, that if such date is subject not a Trading Day, then the Conversion Date shall be deemed to adjustment be the next day that is a Trading Day. The Company shall publicly disclose the mandatory conversion of the Securities pursuant to Section 12.06.
(b) Following the receipt this paragraph in a Form 8-K within one business day of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect date on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver which it delivers written notice to the Holders of the NotesSecurities, the Trustee and the Conversion Agent (if other than with a copy to the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) 9.3.3 In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant dispute as to Section 12.01(b), at any time beginning with the date determination of the Mandatory Conversion Event and ending 30 calendar days following Closing Price, Daily VWAP or the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) arithmetic calculation of the Exchange Act Conversion Price, any adjustment to the Conversion Price, liquidated damages amount, interest or dividend calculation, or any prepayment price, prepayment amount, adjusted Conversion Price, or similar calculation, or as to whether a subsequent issuance of securities is prohibited hereunder or would lead to an adjustment to the Conversion Price, the Company shall submit the disputed determinations or arithmetic calculations via facsimile within two (2) business days of receipt, or deemed receipt, of the Conversion Notice, any prepayment notice, default notice or other event giving rise to such dispute, as the case may be, to the Holders. If the Company and the rules and regulations promulgated thereunder) in excess Holders of 9.99at least 66-2/3% of the aggregate principal amount of then outstanding shares of Common Stock or otherwise be deemed Securities are unable to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange agree upon such conversiondetermination or calculation within two (2) business days of such disputed determination or arithmetic calculation being submitted to such Holders, then the Company will promptly enter into shall, within two (2) business days submit via facsimile (a) the disputed determination of the Closing Price or the Daily VWAP to an independent, reputable investment bank selected by the Company and approved by the Holders of at least 66-2/3% of the aggregate principal amount of then outstanding Securities, which approval shall not be unreasonably withheld, (b) the disputed arithmetic calculation of the Conversion Price, adjusted Conversion Price or any prepayment price, prepayment amount or default amount to the Company’s independent, outside accountant or (c) the disputed facts regarding whether a Registration Rights Agreement covering subsequent issuance of Securities is prohibited hereunder or would lead to an adjustment to the shares Conversion Price (or any of Common Stock received the other above described facts not expressly designated to the investment bank or accountant), to an expert attorney from a nationally recognized outside law firm (having at least one hundred (100) attorneys and having with no prior relationship with the Company) selected by the Company and approved by the Holders of at least 66-2/3% of the aggregate principal amount of then outstanding Securities ). The Company, at the Company’s expense, shall cause the investment bank, the accountant, the law firm, or other expert, as the case may be, to perform the determinations or calculations and notify the Company and the Holders of at least 66-2/3% of the aggregate principal amount of then outstanding Securities of the results no later than five (5) business days from the time it receives the disputed determinations or calculations. Such investment bank’s, accountant’s or attorney’s determination or calculation, as the case may be, shall be binding upon such conversion.
(f) At all parties absent demonstrable error. The Company shall notify the request Trustee of any Holder, the Company will use its reasonable efforts to cooperate determination or calculation made in accordance with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to this Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)9.3.3.
Appears in 1 contract
Sources: Indenture (Genta Inc De/)
Conversion. (a) At any time following Subject to the receipt terms and conditions of the Required Stockholder Approval and the effectiveness Indenture, a Holder may convert each of the Charter Amendmentits Securities into shares of Common Stock, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at such Holder's option at any time and from time to time, on any Business Dayat an initial conversion rate of shares per $1,000 Principal Amount of Securities (the "Conversion Rate"), prior to the earliest close of (1) business on January 14, 2038. The Conversion Rate in effect at any given time is subject to adjustment, and shall be increased by a number of additional shares of Common Stock specified in the Indenture in the event such conversion occurs in connection with certain specified Fundamental Change transactions occurring on or prior to January 20, 2013. A Holder may convert fewer than all of such Holder's Securities so long as the Securities converted are an integral multiple of $1,000 Principal Amount. Holders will not receive any cash payment representing accrued and unpaid interest upon conversion of a Security. Accrued and unpaid interest will be deemed paid in full rather than canceled, extinguished or forfeited; provided, that if applicable, with respect to a Note called this Security shall be surrendered for redemption, conversion during the period from close of business on any Record Date for the payment of interest through the close of business on the Business Day immediately next preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity following Interest Payment Date, into Common Stock, at a conversion rate (the “Conversion Rate”1) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion such Interest Payment Date shall be added paid to the principal amount Holder of record on such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15Record Date, respectively, notwithstanding such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversionconversion, and (2) upon conversion such Security (or portion thereof being converted) must be accompanied by an amount, in funds acceptable to the case Company, equal to the interest payable on such Interest Payment Date on the Principal Amount being converted, except that no such payment described in this clause (2) shall be required (A) in respect of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days conversions following the effectiveness of such conversionRecord Date immediately preceding January 15, that such Holder will beneficially own 2038, (as determined in accordance with Section 13(dB) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of if the Company for purposes of shall have specified a Redemption Date or Fundamental Change Repurchase Date that is after a Record Date and on or prior to the Securities Act and/or immediately following Interest Payment Date or (C) to the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request extent of any Holderoverdue interest, if any overdue interest exists at the Company will use its reasonable efforts time of conversion with respect to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Security.
Appears in 1 contract
Sources: Indenture (Affymetrix Inc)
Conversion. (a) At any time following The mode of carrying the receipt of the Required Stockholder Approval Merger into effect and the effectiveness manner and basis of converting the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding Epilogue into shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionNextPath are as follows:
9.1. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a aggregate number of shares of Epilogue Common Stock per $1,000 principal amount of Notes equal to issued and outstanding on the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP Merger Date shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into an aggregate of 150,000 shares of NextPath Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day adjusted by any increase for at least 15 consecutive Trading Days fractional shares and reduced by any Dissenting Shares (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”defined below). The accrued and unpaid interest on any Note being converted NextPath Common Stock to be issued hereunder ("the NextPath Shares") will be issued pursuant to an Optional Conversion or Mandatory Conversion Rule 506 of the General Rules and Regulations of the Securities and Exchange Commission, will be restricted as to transferability pursuant to Rule 144 thereof, and will bear substantially the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY. NextPath agrees to file a registration statement covering the NextPath Shares with the Securities and Exchange Commission within six months of the effective date of this Agreement.
9.2. Upon completion of the Merger, there shall be added 30,122,031 shares of NextPath Common Stock issued and outstanding, subject to such adjustments, held as follows: 150,000 common shares held by the former shareholders of Epilogue and 29,972,031 common shares held by the other shareholders of NextPath.
9.3. All outstanding Common or Preferred Stock of Epilogue and all warrants, options or other rights to its Common or Preferred Stock shall be retired and canceled as of the Merger Date.
9.4. Each share of Epilogue Common Stock that is owned by Epilogue as treasury stock shall, by virtue of the Merger and without any action on the part of Epilogue, be retired and canceled as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of NextPath Common Stock issued and outstanding on the Merger Date or held by NextPath in its treasury shall continue to evidence ownership of the same number of shares of NextPath Common Stock.
9.6. NextPath Common Stock shall be issued to the principal amount holders of such Note being converted.
(d) If Epilogue Common Stock in exchange for their shares on a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer pro rata basis in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into each holder's relative ownership of the Epilogue Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offerthat is being exchanged.
9.7. The shares of NextPath Common Stock to be issued in exchange for Epilogue Common Stock hereunder shall be proportionately reduced by any shares owned by Epilogue shareholders who shall have timely objected to the Merger (ethe "Dissenting Shares") In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) the provisions of the Exchange Act and the rules and regulations promulgated thereunder) in excess General Corporation Law of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversionDelaware, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionas provided therein.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following until both the receipt of Principal and Interest is paid in full and all conversions have been honored by the Required Stockholder Approval Company and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionis no longer outstanding, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity DatePrincipal and Interest, shall be convertible into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock of the Company at fifty five percent (55%) of the lowest 3 day average closing price price, determined on the then current trading market for the Company’s Common Stock, during a period of twenty (20) trading days prior to conversion (the “Set Price”). Redwood shall effect conversions by delivering to the Company the form of Notice of Conversion attached hereto as Exhibit C (a “Notice of Conversion”), specifying the date on which such conversion is to be effected (a “Conversion Date”) and shall require the shares of Common Stock to be delivered by the Company within three (3) Business Days. If no Conversion Date is specified in accordance a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is provided hereunder. To effect conversions hereunder, Redwood shall not be required to otherwise physically surrender anything to the Company. If the Company does not request, from its transfer agent, the issuance of the shares underlying the Note after receipt of a Notice of Conversion within three (3) Business Days following the date of Notice of Conversion, or fails to timely deliver the shares of Common Stock per the instructions of Redwood, within three (3) Business Days, free and clear of all legends and in legal free trading form, the Company shall be responsible to immediately reimburse Redwood for any differential in the value of the converted shares of Common Stock between the value of the closing price on the date the shares of Common Stock should have been delivered and the date the shares of Common Stock are delivered. Redwood and any assignee, by acceptance of the Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of the Note, the unpaid and unconverted Principal may be less than the amount stated on the face hereof. The parties hereby agree that the Company shall reimburse Redwood for all legal costs associated with Section 12.03the issuance of an opinion(s) of counsel to the Transfer Agent and other costs, expenses and liabilities incurred in connection with the conversion and issuance of the shares of Common Stock. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to Redwood for all fees and expenses immediately upon written notice by Redwood or the submission of an invoice by Redwood. In addition, if the Company fails to timely (within three (3) Business Days); provided that , deliver the shares of Common Stock per the instructions of Redwood, free and clear of all legends and in legal free trading form, the Company shall allow Redwood to add two (2) days to the look back (the mechanism used to obtain the conversion price along with discount) for each day the Company fails to timely (within three (3) Business Days)) deliver shares of Common Stock, on the next two (2) conversions. Notwithstanding anything to the contrary herein contained, Redwood may not convert under the Note to the extent such conversion would result in Redwood, together with any Holder of Notes who would affiliate thereof, beneficially own owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.994.99% of the then issued and outstanding shares of Common Stock Stock, including shares issuable upon such conversion and held by Redwood after application of such Holder’s Notes this section. The provisions of this section may be waived by Redwood, in whole or part, upon sixty-one (61) days prior written notice. Any successor to Redwood shall be required to provide 61 days’ written notice to the Company prior to unaffected by any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06waiver.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following Subject to the receipt terms of the Required Stockholder Approval Indenture, the Holder of a Security may convert the Security into shares of Common Stock at the Conversion Rate under the circumstances set forth in Sections 11.2, 11.3, 11.4 and the effectiveness 11.5 of the Charter Amendment, Holders Indenture. A Security in respect of which a Holder has delivered a Purchase Notice or a Change in Control Purchase Notice exercising the option of such Holder to require the Company to purchase such Security may be converted only if such notice of exercise is withdrawn in accordance with the terms of the Notes shall have Indenture. The Conversion Rate for the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, Securities on any Business Day, prior Conversion Date shall be determined as set forth in the Indenture. The Company shall deliver cash or a check in lieu of any fractional share of Common Stock. A Holder's right to convert the Securities into Common Stock of the Company is also subject to the earliest Company's right to elect to pay such Holder the amount of (1) cash set forth in the next succeeding sentence in lieu of delivering all or part of such Common Stock; provided, however, that if applicable, with respect such payment of cash is not permitted pursuant to a Note called for redemptionthe provisions of the Indenture, the close of business on the Business Day immediately preceding the Redemption Date or Company shall deliver Common Stock (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus and cash in lieu of fractional shares of Common Stock Stock) in accordance with Section 12.03); provided the Indenture, whether or not the Company has delivered a notice pursuant to the Indenture to the effect that the Securities will be paid in cash. If the Company shall elect to make such payment in shares of Common Stock or a combination of cash and Common Stock, the Company shall deliver to the Holder through the Conversion Agent, no later than the third Business Day following the date on which the Applicable Stock Price is determined, a certificate for the number of whole shares of Common Stock issuable upon the conversion and, if applicable, cash in lieu of such Common Stock and cash in lieu of any fractional shares. If, however, the Company shall elect to make all or a portion of such payment solely in cash, the Company shall deliver to the Holder surrendering a Security the amount of Notes who would beneficially own cash per Security (as determined or a portion of a Security) equal to the Applicable Stock Price multiplied by the Conversion Rate in accordance effect with Section 13(d) respect to such Conversion Date no later than the tenth Business Day following such Conversion Date. The Company may not pay cash in lieu of the Exchange Act and the rules and regulations promulgated thereunder) in excess delivering all or part of 9.99% of the outstanding such shares of Common Stock upon the conversion of such Holder’s Notes shall be required to provide 61 days’ written notice any Security pursuant to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt terms of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert Indenture (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus other than cash in lieu of fractional shares) if there has occurred (prior to, on or after, as the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventcase may A-11 be, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on Date or the date of occurrence of on which the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Company delivers its notice specifying whether each Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes converted into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise cash) and is continuing an Event of Default (other than a default in such payment on such Securities). A Holder may convert a portion of a Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment shall be made for dividends on the Common Stock except as provided in the Indenture. On conversion of a Security, that portion of accrued and unpaid interest (including Contingent Interest, if any) on the converted Security attributable to the period from the most recent Interest Payment Date (or, if no Interest Payment Date has occurred, from the Issue Date) through the Conversion Date and Tax Original Issue Discount accrued through the Conversion Date with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be an “affiliate” paid in full to the Holder thereof through delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares), or cash in lieu thereof, in exchange for the Security being converted pursuant to the provisions hereof. Securities or portions thereof surrendered for conversion during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the opening of business on such Interest Payment Date shall (except for Securities called for redemption on a Redemption Date that occurs during the period between a Regular Record Date and the Interest Payment Date to which such Regular Record Date relates) be accompanied by payment to the Company or its order, in New York Clearing House funds or other funds acceptable to the Company, of an amount equal to the interest payable on such Interest Payment Date on the Principal Amount of Securities or portions thereof being surrendered for purposes conversion. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the Applicable Stock Price. The Company agrees, and each Holder and any beneficial owner of a Security by its purchase thereof shall be deemed to agree, to treat, for United States federal income tax purposes, the fair market value of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon the conversion of a Security (together with any cash payment in lieu of fractional shares) or cash, or a combination of cash and Common Stock as a contingent payment on the Security for purposes of Treasury Regulation Section 1.1275-4(b). To convert a Security, a Holder must (a) complete and manually sign the conversion notice set forth below and deliver such conversion.
notice to a Conversion Agent, (fb) At surrender the request Security to the Conversion Agent, (c) furnish appropriate endorsements and transfer documents (including any certification that may be required under applicable law) if required by the Conversion Agent, and (d) pay any transfer or similar tax, if required. The Conversion Rate will be adjusted under the Indenture for dividends or distributions on Common Stock payable in Common Stock or other Capital Stock; subdivisions, combinations or certain reclassifications of any Holder, Common Stock; distributions to all holders of Common Stock of certain rights to purchase Common Stock for a period expiring within 60 days at less than the Company will use its reasonable efforts Sale Price at the Time of Determination; and distributions to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” holders of assets or debt securities of the Company for purposes or certain rights to purchase securities of the Securities Act and/or Company (excluding A-12 certain cash dividends or distributions), all as more fully provided in the Exchange Act upon any Optional Indenture. However, no adjustment need be made if Holders may participate in the transaction or in certain other cases. The Company from time to time may voluntarily increase the Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Rate.
Appears in 1 contract
Conversion. (a) At any time following The mode of carrying the receipt of the Required Stockholder Approval Merger into effect and the effectiveness manner and basis of converting the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding ▇▇▇▇▇▇ into shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionNew Millennium are as follows:
9.1. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a aggregate number of shares of ▇▇▇▇▇▇ Common Stock per $1,000 principal amount of Notes equal to issued and outstanding on the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP Merger Date shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into an aggregate of 500,000 shares of New Millennium Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day adjusted by any increase for at least 15 consecutive Trading Days fractional shares and reduced by any Dissenting Shares (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”defined below). The accrued and unpaid interest on any Note being converted New Millennium Common Stock to be issued hereunder ("the New Millennium Shares") will be issued pursuant to an Optional Conversion or Mandatory Conversion Rule 506 of the General Rules and Regulations of the Securities and Exchange Commission, will be restricted as to transferability pursuant to Rule 144 thereof, and will bear substantially the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
9.2. Upon completion of the Merger, there shall be added 24,500,000 shares of New Millennium Common Stock issued and outstanding, subject to such adjustments, held as follows: 500,000 common shares held by ▇▇▇▇▇▇ ▇▇▇▇▇ and 24,000,000 common shares held by the other shareholders of New Millennium. The management of New Millennium will not consolidate, reverse split or rollback the common shares of New Millennium during the one-year period in which ▇▇▇▇▇▇ ▇▇▇▇▇ is restricted from selling the 500,000 shares of New Millennium stock. Such dilution would have an adverse effect on the amount and value of shares issued to ▇▇▇▇▇▇ ▇▇▇▇▇ by New Millennium.
9.3. All outstanding Common or Preferred Stock of ▇▇▇▇▇▇ and all warrants, options or other rights to its Common or Preferred Stock shall be retired and canceled as of the Merger Date.
9.4. Each share of ▇▇▇▇▇▇ Common Stock that is owned by ▇▇▇▇▇▇ as treasury stock shall, by virtue of the Merger and without any action on the part of ▇▇▇▇▇▇, be retired and canceled as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of New Millennium Common Stock issued and outstanding on the Merger Date or held by New Millennium in its treasury shall continue to evidence ownership of the same number of shares of New Millennium Common Stock.
9.6. New Millennium Common Stock shall be issued to the principal amount holders of such Note being converted.
(d) If ▇▇▇▇▇▇ Common Stock in exchange for their shares on a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer prorata bases in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into each holder's relative ownership of the ▇▇▇▇▇▇ Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offerthat is being exchanged.
9.7. The shares of New Millennium Common Stock to be issued in exchange for ▇▇▇▇▇▇ Common Stock hereunder shall be proportionately reduced by any shares owned by ▇▇▇▇▇▇ shareholders who shall have timely objected to the Merger (ethe" Dissenting Shares") In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) the provisions of the Exchange Act and the rules and regulations promulgated thereunder) in excess General Corporation Law of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversionDelaware, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionas provided therein.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Merger Agreement (New Millennium Media International Inc)
Conversion. (a) At any time following As provided in and subject to the receipt provisions of the Required Stockholder Approval and Indenture, the effectiveness of Holder hereof has the Charter Amendmentright, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at its option at any time on or after the Indenture Effective Date and from time the latest date of issue of any Additional Bonds up to time, the close of business (at the place where the certificate evidencing such Bond is deposited for conversion) on any Business Day, the tenth day prior to its Stated Maturity (both days inclusive) or, if all of the earliest of (1) if applicable, with respect to a Note Bonds have been called for redemption, the close of business on seventh day prior to the Business Day immediately preceding the relevant Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at to convert this Certificate or a conversion rate (portion of this Certificate such that the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of this Certificate that is not converted equals U.S.$200,000 or an integral multiple of U.S.$1 in excess thereof, into an amount of cash, a number of Shares, or a combination of cash and Shares, if any, as the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as case may be, determined in accordance with Section 13(d) of Article IV, provided that except as set forth in paragraph 3 above, the Exchange Act Company may, by giving not less than seven Business Day’s notice to the Trustee, the Conversion Agent, and to the Holders on the Bloomberg site applicable to the Company and the rules and regulations promulgated thereunderCompany’s investor relations website page (which notice must include the date any such suspension will cease), suspend the conversion rights attaching to the Bonds if:
(i) at any time in excess of 9.99the six months after the Indenture Effective Date, Bonds in an amount greater than 30% of the outstanding shares Initial Principal Amount have been converted into Shares, which suspension shall automatically cease on the date that is six months after the Indenture Effective Date;
(ii) at any time in the 18 months after the Indenture Effective Date, Bonds in an amount greater than 70% of Common Stock upon conversion Initial Principal Amount have been converted into Shares, which suspension shall automatically cease on the date that is 18 months after the Indenture Effective Date; and
(iii) at any time in the 30 months after the Indenture Effective Date, Bonds in an amount greater than 90% of such Holder’s Notes Initial Principal Amount have been converted into Shares, which suspension shall automatically cease on the date that is 30 months after the Indenture Effective Date. Notwithstanding the foregoing, the Company shall be required to provide 61 days’ written notice comply with and perform all conversions delivered to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver suspension notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventcontemplated by this paragraph 4.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Supplemental Indenture
Conversion. (a) At any time following such times and in accordance with the receipt terms of Article 4 of the Required Stockholder Approval and the effectiveness of the Charter AmendmentSupplemental Indenture, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding may surrender Notes, at any time and from time to time, on any Business Day, prior to the earliest in integral multiples of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional amount, for conversion into shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06Stock.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of The initial Conversion Rate is 143.8332 shares of Common Stock per $1,000 principal amount of Notes Notes, subject to adjustment in certain events described in the Indenture. Upon conversion, a Holder will receive, on the third Trading Day following the Conversion Date, a number of shares of Common Stock equal to (i) (A) the aggregate principal amount of Notes to be converted, divided by (B) $1,000, multiplied by (ii) the applicable Conversion Rate then in effect (plus on the relevant Conversion Date; provided, however, that for any conversion that occurs on or after the record date for the payment of interest on the Notes at maturity, the Company will deliver such shares on the Maturity Date. Notwithstanding the foregoing, the Company will not deliver any fractional shares upon conversion; instead, Holders will receive cash in lieu of fractional shares) if shares based on the Daily VWAP Last Reported Sale Price of the Common Stock exceeds or on the Conversion Date (or, if the Conversion Date is equal to the Threshold Price in effect on each applicable not a Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion EventDay, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day next following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion EventTrading Day).
(c) Interest shall cease To surrender a Note for conversion, a Holder must (1) complete and manually sign the irrevocable conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such notice to accrue on the Conversion Agent; (2) surrender the Note to the Conversion Agent; (3) furnish appropriate endorsements and transfer documents; and (4) pay any Notes on the date transfer or similar tax, if required.
(d) A Holder may convert a portion of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any a Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to if the principal amount of such Note being converted.
(d) If portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the shares of Common Stock, except as provided in the Indenture. Except as provided in Paragraph 1 hereof, on conversion of a Note, the Holder exercises its right will not receive any cash payment representing accrued and unpaid interest with respect to require the converted Notes. Instead, upon conversion the Company will deliver to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such the Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise and any cash payment to account for fractional shares. Accrued and unpaid interest will be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversionpaid in full rather than cancelled, then the extinguished or forfeited. The Company will promptly enter into a Registration Rights Agreement covering not adjust the shares of Common Stock received upon such conversionConversion Rate to account for accrued and unpaid interest.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Second Supplemental Indenture (Mgic Investment Corp)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentSubject to compliance with Section 10.02, Holders of the Notes a Holder shall have the right to convert all or any portion (the if such portion is $1,000 principal amount or an integral multiple of $1,000 principal amount) of its Securities (“Optional Conversion”) their outstanding Notes), at any time and from time to time, on any the date of issuance until the Close of Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) maturity date of the close of business on the Business Day immediately preceding the Maturity DateSecurities, into a number of shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal amount of Securities being converted equal to the Notes Conversion Rate then in effect (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.0310.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the The Company shall convert the Securities (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes Securities equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) shares of Common Stock in accordance with Section 10.03), if the Daily VWAP of the Common Stock (or other security into which the Securities are convertible pursuant to Section 10.11) exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 10 Trading Days (whether or not consecutive) during any period of 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the NotesSecurities, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open Open of business Business on the second business day Business Day following such the Mandatory Conversion Event, which notice shall specify that the date on which the Mandatory Conversion shall occur occur, which shall not be later than the third business day fifth Business Day following the notice of the Mandatory Conversion EventEvent (the “Mandatory Conversion Date”). Notwithstanding the foregoing, a Mandatory Conversion shall not occur unless, as evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent (if other than the Trustee) on the Mandatory Conversion Date, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing on, and including, the date of the Mandatory Conversion Notice and (y) ending on, and including, the Mandatory Conversion Date (the “Equity Conditions Measuring Period”):
(i) either (1) all shares of Common Stock issuable upon conversion of the Securities and held by a non-Affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the shares of Common Stock issuable upon conversion of the Securities shall have been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such shelf registration statement to remain effective and available for use from the Mandatory Conversion Date until a date that is at least thirty days following the Mandatory Conversion Date;
(ii) the Common Stock deliverable upon conversion is listed or traded on The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, or any of their respective successors (each, an “Eligible Market”) and shall not then be suspended from trading on such Eligible Market;
(iii) at or prior to the Mandatory Conversion Date, for any Securities validly surrendered for Optional Conversion on or prior to the date of the Mandatory Conversion Notice in accordance with the terms of this Indenture, the Company shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of those Securities to the applicable Holders in accordance with Section 10.01(a);
(iv) any shares of Common Stock to be issued upon conversion may be issued without violating the rules or regulations of The New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is or are then listed or trading; and
(v) no Event of Default shall have occurred and be continuing. If the Company is relying on the availability for use of a shelf registration statement to satisfy the Equity Condition described in Section 10.01(b)(i)(2), then the Company shall so notify the Holders by inclusion in the Mandatory Conversion Notice (or other notice to Holders no later than the date of the Mandatory Conversion Notice). Such notice shall inform the Holders of the availability for use of a shelf registration statement, and that the use and availability of such registration statement and related prospectus by any Holder or beneficial holder for resales of shares of Common Stock issuable upon conversion of the Securities is subject to: (1) the Company’s receipt of a properly completed Selling Holder Notice and Questionnaire (or such disclosure as may be required to be included in the registration statement and related prospectus with respect to the beneficial holder being named as a selling stockholder, together with such information and acknowledgments related thereto as are reasonably satisfactory to the Company) from such beneficial holder, (2) such beneficial holder being named as a selling stockholder in the registration statement and related prospectus, whether by post-effective amendment, supplement, incorporation by reference or otherwise, to the extent required by and in accordance with applicable law, and (3) such beneficial holder’s compliance with the representations and warranties contained in Item (10) of the Selling Holder Notice and Questionnaire and the other terms and conditions thereof. If applicable, the Company shall use its reasonable best efforts to keep the registration statement described under Section 10.01(b)(i)(2) above effective and available for use for at least 30 days following the Mandatory Conversion Date.
(c) Interest shall cease to accrue on any Notes Securities on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “applicable Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or Securities in connection with the occurrence of a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively4.09, such Holder may convert its Notes Securities into Common Stock only if it withdraws its election to have its Notes Securities repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In and converts its Securities prior to the event that any Holder notified the Company (1) in the case Close of an Optional Conversion pursuant to Section 12.01(a), at any time beginning Business on the date of Business Day immediately preceding the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionapplicable repurchase date.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Conversion. (a1) At any time following Provided that there are no unresolved claims for losses incurred by the receipt Company pursuant to the indemnification provisions of Section 8 of the Required Stockholder Approval and Purchase Agreement, the effectiveness holder of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, this Security is entitled at any time after [12 MONTHS FROM CLOSING DATE], 2003 and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, time before the close of business on the Maturity Date, to convert the principal amount of this Security (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (calculated as to each conversion to the nearest 1/100 of a share) of the Company at the rate of ________1 shares of Common Stock for each $1,000 principal amount of Security (or at the then current adjusted rate if an adjustment has been made as provided below) (the "CONVERSION RATE") by surrender of this Security, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company, in the form attached hereto, that the holder hereof elects to convert this Security (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If the holder elects to exercise its conversion right hereunder, then the Company shall, within five (5) Business Day immediately preceding Days after receipt of written notice of such election, deliver or cause to be delivered to the Redemption Date holder at the address specified by the holder to the Company in the conversion notice a certificate or certificates for the Common Stock issued upon such conversion and any replacement Security issued as a result of any partial conversion of this Security.
(2) Upon surrender of this Security for conversion, the holder will be entitled to payment in cash within three (3) Business Days thereafter of the interest accrued on the principal amount of this Security then being converted and unpaid to such date of conversion.
(3) Subject to SECTION 2(B) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any ---------------------------- 1 The conversion rate shall equal the greater of (i) 1000/(the arithmetic average of the daily volume weighted average prices for the Common Stock, as reported by Bloomberg L.P., for each the five (5) consecutive Trading Days ending on the second Trading Day immediately prior to the date of issuance of this Security)(1.25) or (ii) 1000/16. fractional interest, the Company shall pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the Trading Day immediately prior to the Company Conversion Date, or, at its option, the Company shall round up to the next higher whole share.
(4) In the event that the conversion of this Security into shares of Common Stock would require the Company and the holder of this Security to file notification and report forms with the Federal Trade Commission (the "FTC") and Antitrust Division of the Department of Justice (the "DOJ") pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "▇▇▇ ▇▇▇"), ▇▇▇▇ the holder of this Security and the Company agree (i) to use their best efforts to complete all applicable filings and provide all necessary information as required pursuant to the HSR Act, and (ii) such conversion of this Security into shares of Common Stock shall not occur until such time as the required filings are made pursuant to the HSR Act and the required waiting period(s) have expired or early termination of the required waiting period(s) has been granted by the FTC or the DOJ. The Company and the holder will each bear their own respective filing fees for any filings made pursuant to the HSR Act. The Company shall, if the holder so elects, and within the time period prescribed in SECTION 2(A)(1) hereof, deliver or cause to be delivered the Common Stock issuable upon conversion of this Security to any third party or parties designated by the holder, subject to compliance with SECTIONS 2(F), 8(D) and 8(F) hereof.
(b) The Conversion Rate will be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on Common Stock of the Company payable in Common Stock, the Conversion Rate in effect at the opening of business on the day following the Determination Date (as hereinafter defined) for such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date and the denominator shall be the sum of such number of shares of Common Stock and the total number of shares of Common Stock constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Company but shall include Common Stock issuable in respect of scrip certificates issued in lieu of fractions of Common Stock. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (7) of this SECTION 2(B)) of the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Company but shall include Common Stock issuable in respect of scrip certificates issued in lieu of fractions of Common Stock. The Company will not issue any rights, options or warrants in respect of Common Stock held in the treasury of the Company. Upon the expiration of any right, option or warrant to purchase Common Stock the issuance of which resulted in an adjustment to the Conversion Rate pursuant to this paragraph (2) of SECTION 2(B), if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Rate shall immediately upon such expiration be recomputed to the Conversion Rate which would have been in effect had the adjustment of the Conversion Rate made upon the issuance of such right, option or warrant been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such right, option and warrant actually exercised.
(3) In case outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 2(B), (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 2(B) and (iv) any merger or consolidation to which SECTION 2(H) applies (the "DISTRIBUTED PROPERTY"), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Business Day Determination Date for such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this SECTION 2(B)) of the Common Stock on such Determination Date less the then fair market value (as determined in good faith by the Board of Directors of the Company in accordance with the provisions of this paragraph 4 of SECTION 2(B)) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately preceding prior to the Maturity opening of business on the day following such Determination Date; provided, however, that if the Distributed Property consists of shares of capital stock of a Subsidiary, the Company may, at its option and in lieu of the foregoing adjustment to the Conversion Rate, elect to make adequate provision so that the holder of this Security shall have the right to receive upon conversion the amount of such shares of capital stock that such holder of this Security would have received if such holder of this Security had converted such Security on the record date. If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities constituting such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (7) of this SECTION 2(B). In the event the Company implements a stockholder's rights plan (a "RIGHTS PLAN"), upon conversion of this Security into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the holder of this Security will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to the Rights Plan in compliance with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a conversion rate distribution of rights or warrants pursuant to this SECTION 2(B). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this SECTION 2(B) (and no adjustment to the Conversion Rate under this SECTION 2(B) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this SECTION 2(B). If any such right or warrant, including any such existing rights or warrants distributed prior to the original issue date of this Security, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this section was made, (x) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (y) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of SECTION 2(B)) in an aggregate amount that, combined with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) of SECTION 2(B) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a board resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of SECTION 2(B) has been made (the “Conversion Rate”"combined cash and tender amount"), exceeds ten percent (10%) of 81.2 shares per $1,000 principal amount the product of the Notes current market price per share of the Common Stock (plus cash determined as provided in lieu paragraph (7) of fractional this SECTION 2(B)) on the date for the determination of holders of shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of entitled to receive such distribution times the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of Notes business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP current market price per share of the Common Stock exceeds or is on the date fixed for such determination less an amount equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days quotient of (x) the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount excess of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice combined cash and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).tender amou
Appears in 1 contract
Sources: Asset Purchase Agreement (Catapult Communications Corp)
Conversion. At the Effective Time of the Merger, each of the ------------------------ following transactions shall be deemed to occur simultaneously:
(a) At any time following the receipt Each share of the Required Stockholder Approval and the effectiveness of the Charter AmendmentParent's common stock, Holders of the Notes shall have the right convert no par value (the “Optional Conversion”"Parent's Common Stock") their outstanding Notesissued and outstanding, at any time and from time to time, on any Business Day, immediately prior to the earliest Effective Time of (1) if applicablethe Merger shall, with respect to a Note called for redemption, by virtue of the close of business Merger and without any action on the Business Day immediately preceding part of the Redemption Date or holder thereof, be converted into and become one validly issued, fully paid and nonassessable share of the Surviving Corporation's common stock, par value $0.0001 per share (2) the close of business on the Business Day immediately preceding the Maturity Date, into "Surviving Corporation's Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03"); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt Each share of the Required Stockholder Approval Parent's Series A Preferred Stock, no par value (the "Parent's Series A Preferred Stock") issued and outstanding, immediately prior to the effectiveness Effective Time of the Charter AmendmentMerger shall, by virtue of the Company shall convert Merger and without any action on the part of the holder thereof, be converted into and become one validly issued, fully paid and nonassessable share of the Surviving Corporation's Series A Preferred Stock, par value $0.0001 per share (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”"Surviving Corporation's Series A Preferred Stock"). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease Each option to accrue on purchase shares of the Parent's Common Stock outstanding immediately prior to the Effective Time of the Merger shall, by virtue of the Merger and without any Notes action on the date of occurrence part of the Optional Conversion or holder thereof, be converted into and become an option to purchase, upon the Mandatory Conversion (such datesame terms and conditions, the “Conversion Date”). The accrued number of shares of the Surviving Corporation's Common Stock, which is equal to the number of shares of the Parent's Common Stock that the optionee would have received had the optionee exercised such option in full immediately prior to the Effective Time of the Merger (whether or not such option was then exercisable) and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion the exercise price per share under each of said options shall be added equal to the principal amount exercise price per share thereunder immediately prior to the Effective Time of the Merger, unless otherwise provided in the instrument granting such Note being convertedoption.
(d) If a Holder exercises its right Each warrant to require purchase shares of the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Parent's Common Stock only if it withdraws its election outstanding immediately prior to the Effective Time of the Merger shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into and become a warrant to purchase, upon the same terms and conditions, the number of shares of the Surviving Corporation's Common Stock which is equal to the number of shares of the Parent's Common Stock that the warrant holder would have its Notes repurchased received had the warrant holder exercised such warrant in connection with full immediately prior to the Effective Time of the Merger (whether or not such Prepayment Offer or Change warrant was then exercisable) and the exercise price per share under each of Control Offersaid warrants shall be equal to the exercise price per share thereunder immediately prior to the Effective Time of the Merger, unless otherwise provided in the instrument granting such warrant.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date Each share of the provision Subsidiary's Common Stock issued and outstanding immediately prior to the Effective Time of the Optional Conversion Notice Merger and ending with held by the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at Parent shall be canceled without any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock consideration being issued or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionpaid therefor.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Merger Agreement (Us Patriot Inc)
Conversion. (a) At any time following A Holder of a Security may convert it into Shares in accordance with the receipt terms and conditions set forth in Article 11 of the Required Stockholder Approval and Indenture. After May 25, 2003, a Holder's right to convert Securities into Shares is subject to the effectiveness Issuer's right to elect to instead pay such Holder the amount of cash set forth in the next succeeding sentence in lieu of delivering all or part of such Shares; provided, however, that if such payment of cash is not permitted pursuant to the provisions of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionIndenture, the close of business on the Business Day immediately preceding the Redemption Date or Issuer shall deliver Shares (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus and cash in lieu of fractional shares of Common Stock Shares) in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) Article 11 of the Exchange Act and Indenture, whether or not the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written Issuer has delivered a notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt 11.02 of the Required Stockholder Approval and Indenture to the effectiveness effect that the Securities will be paid in cash. The amount of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per cash to be paid for each $1,000 principal amount Principal Amount of Notes a Security shall be equal to the Market Price of a Share multiplied by the Conversion Rate then in effect on such Conversion Date. If the Issuer shall elect to make such payment wholly in Shares, then such Shares shall be delivered through the Conversion Agent to Holders surrendering Securities no later than the fifth Business Day following the Conversion Date. If, however, the Issuer shall elect to make any portion of such payment in cash, then the payment, including any delivery of Shares, shall be made to Holders surrendering Securities no later than the tenth Business Day following the Conversion Date. The Issuer shall not pay cash in lieu of delivering all or part of such Shares upon the conversion of any Security pursuant to the terms of Article 11 of the Indenture (plus other than cash in lieu of fractional shares) if there has occurred (prior to, on or after, as the Daily VWAP case may be, the Conversion Date or the date on which the Issuer delivers its notice of whether each Security shall be converted into Shares or cash) and is continuing an Event of Default (other than a default in such payment on such Securities). A-1-10 106 The initial Conversion Rate is 15.6824 Shares per $1,000 Principal Amount at Maturity, subject to adjustment in certain events described in the Indenture. The Issuer will deliver cash or a check in lieu of any fractional Share. In the event the Issuer exercises its option pursuant to Section 10.01 of the Common Stock exceeds or is Indenture to have interest in lieu of Original Issue Discount accrue on the Security following a Tax Event, the Holder will be entitled on conversion into Shares to receive the same number of Shares such Holder would have received if the Issuer had not exercised such option. If the Issuer exercises such option, Securities surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date (except Securities to be redeemed on a date within such period) must be accompanied by payment of an amount equal to the Threshold Price interest (including Contingent Interest) thereon that the registered Holder is entitled to receive. Except where Securities surrendered for conversion must be accompanied by payment as described above, no interest on converted Securities shall be payable by the Issuer on any Interest Payment Date subsequent to the date of conversion. Securities surrendered for conversion during the period from the close of business on any date on which Contingent Interest accrues to the opening of business on the date on which such Contingent Interest is payable (except Securities with respect to which the Issuer has mailed a notice of redemption) must be accompanied by payment of an amount equal to the Contingent Interest and Defaulted Interest with respect thereto that the registered Holder is to receive. Except where Securities surrendered for conversion must be accompanied by payment as described above, no Contingent Interest or Defaulted Interest on converted Securities will accrue after the date of conversion. To convert a Security, a Holder must (1) complete and manually sign the conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent for cancellation, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Issuer or the Trustee and (4) pay all funds required, if any, relating to interest (including Contingent Interest) on the Security to be converted for which you are not entitled and pay any transfer or similar tax, if required. A Holder may convert a portion of a Security if the Principal Amount at Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on, or other distributions with respect to, any Shares except as provided in effect the Indenture. On conversion of a Security, that portion of accrued Original Issue Discount (or interest, if the Issuer has exercised its option provided for below in "Tax Event") attributable to the period from the Issue Date (or, if the Issuer has exercised the option referred to below in "Tax Event", the later of (x) the date of such exercise and (y) the date on each applicable Trading Day which interest was last paid) through the Conversion Date with respect to the converted Security and (except as provided below) accrued Contingent Interest and accrued Defaulted Interest with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through the delivery of the Shares (together with the cash payment, if any, in lieu of fractional Shares) in exchange for at least 15 consecutive Trading Days the Security being converted pursuant to the terms hereof; and the fair market value of such Shares (together with any such The Conversion Rate will be adjusted as provided in the “Mandatory Conversion Indenture. If the Issuer is a party to a consolidation, merger or binding share exchange or a transfer of its assets as, or substantially as, an entirety, or upon certain distributions described in the Indenture, the right to convert a Security into Shares may be changed into a right to convert it into securities, cash or other assets of the Issuer or another Person. In the event of a Share Separation, the Securities shall not be convertible in Shares, but shall instead be convertible solely into Corporation Shares except upon a Trust Assumption Event”). Upon the occurrence of the Mandatory Conversion Eventa Share Separation, the Company Conversion Rate of the Securities shall deliver notice be adjusted in accordance with the terms of the Indenture. In addition, Holders of Securities shall not be entitled to convert their Securities into Shares for the period beginning on the record date for such Share Separation and ending on the first Business Day succeeding the first five consecutive trading days after the effective date of such Share Separation. Tax Event - From and after (1) the date (the "Tax Event Date") of the occurrence of a Tax Event and (2) the date the Issuer exercises such option, whichever is later (the "Option Exercise Date"), at the option of the Issuer, interest in lieu of future Original Issue Discount shall accrue at the rate of 1.0% per annum on a principal amount per Security (the "Restated Principal Amount") equal to the Holders Issue Price plus Original Issue Discount accrued to the Option Exercise Date and shall be payable semi-annually on May 25 and November 25 of each year (each an "Interest Payment Date") to holders of record at the Notesclose of business on May 1 or November 1 (each a "Regular Record Date") immediately preceding such Interest Payment Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months and will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Trustee Option Exercise Date. Interest (including Contingent Interest) on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Conversion Agent (if other than Person in whose name that Security is registered at the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open close of business on the second business Regular Record Date for such interest at the office or agency of the Issuer maintained for such purpose. Each installment of interest on any Security shall be paid in same-day following funds by transfer to an account maintained by the payee located inside the United States, provided that with respect to any Holder, such Mandatory Conversion Event, which notice Holder shall specify that have furnished to the Mandatory Conversion shall occur not Paying Agent all required wire payment instructions no later than the third business day following related Regular Record Date, or if no such instructions have been furnished, by check payable to such Holder. From and after the notice of Option Exercise Date, Contingent Interest provided for in the Mandatory Conversion Event.
(c) Interest paragraph entitled "Contingent Interest" hereof shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being convertedthis Security.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. After October 2, 2001, the Holders of Trust Securities, subject to the limitations set forth in this Section, shall have the right, at their option, to cause the Conversion Agent to convert Trust Securities, on behalf of the converting Holders, into shares of Common Stock in the manner described herein on and subject to the following terms and conditions:
(ai) Subject to subparagraph (ii) below, the Trust Securities will be convertible into fully paid and nonassessable shares of Common Stock pursuant to the Holder's direction to the Conversion Agent to exchange such Trust Securities for a portion of the Junior Subordinated Notes having a principal amount equal to the aggregate Liquidation Preference of such Trust Securities, and immediately (unless the Spin-Off has not occurred, in which case within the time specified in subparagraph (ii) below) convert such amount of Junior Subordinated Notes into fully paid and nonassessable shares of Common Stock at an initial rate of 1.8182 shares of Common Stock for each Trust Security (which is equivalent to a conversion price of approximately $27.50 per share of Common Stock), subject to certain adjustments set forth in the Indenture (as so adjusted, "Conversion Price").
(ii) At any time following the receipt of the Required Stockholder Approval after October 2, 2001 and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest Spin-Off, the Company may elect to make a cash settlement in respect of any Trust Security surrendered for exchange by delivering notice thereof to the tendering Holder not more than five Trading Days after such Trust Security is surrendered for exchange. Such cash settlement shall be in an amount, per $50 Liquidation Preference of Trust Securities delivered for exchange, equal to the product of (1i) the then-prevailing Conversion Price (as specified in writing by the Company) and (ii) the average of the Closing Price of the Common Stock on the five Trading Days commencing two Trading Days after delivery by the Company of such notice to such Holder. The Company will pay such cash settlement amount as promptly as practicable after the completion of such five Trading Day period.
(iii) In order to convert Trust Securities into Common Stock or cash, as the case may be, the Holder of such Trust Securities shall submit to the Conversion Agent an irrevocable Notice of Conversion to convert Trust Securities on behalf of such Holder, together, if the Trust Securities are in certificated form, with such certificates. The Notice of Conversion shall (i) set forth the number of Trust Securities to be converted and the name or names, if other than the Holder, in which the shares of Common Stock or cash, as the case may be, should be issued and (ii) direct the Conversion Agent (a) to exchange such Trust Securities for a portion of the Junior Subordinated Notes held by the Property Trustee (at the rate of exchange specified in the preceding paragraph) and (b) to immediately (unless the Spin-Off has not occurred, in which case within the time specified in subparagraph (ii) below) convert such Junior Subordinated Notes, on behalf of such Holder, into Common Stock (at the conversion rate specified in the preceding paragraph) or cash, as the case may be. The Conversion Agent shall notify the Property Trustee in writing of the Holder's election to exchange Trust Securities for a portion of the Junior Subordinated Notes held by the Property Trustee and the Property Trustee shall, upon receipt of such written notice, deliver to the Conversion Agent the appropriate principal amount of Junior Subordinated Notes for exchange in accordance with this Section. The Conversion Agent shall thereupon notify the Depositor of the Holder's election to convert such Junior Subordinated Notes into shares of Common Stock. Holders of Trust Securities at the close of business on a Distribution payment record date will be entitled to receive the Distribution paid on such Trust Securities on the corresponding Distribution Date notwithstanding the conversion of such Trust Securities on or following such record date but prior to such Distribution Date. Except as provided above, neither the Trust nor the Depositor will make, or be required to make, any payment, allowance or adjustment upon any conversion on account of any accumulated and unpaid Distributions whether or not in arrears accrued on the Trust Securities surrendered for conversion, or on account of any accumulated and unpaid dividends on the shares of Common Stock issued upon such conversion. Trust Securities submitted for conversion prior to the expiration of conversion rights as provided in Section 4.05(iv) shall be deemed to have been converted immediately prior to the close of business on the day on which an irrevocable Notice of Conversion relating to such Trust Securities is received by the Conversion Agent in accordance with the foregoing provision (the "Conversion Date"). The Person or Persons entitled to receive the Common Stock issuable upon conversion of the Junior Subordinated Notes shall be treated for all purposes as the record holder or holders of such Common Stock on the Conversion Date. As promptly as practicable on or after the Conversion Date, if applicable, the Depositor shall issue and deliver at the office of the Conversion Agent a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion, together with respect the cash payment, if any, in lieu of any fraction of any share to a Note called for redemptionthe Person or Persons entitled to receive the same, unless otherwise directed by the Holder in the notice of conversion and the Conversion Agent shall distribute such certificate or certificates to such Person or Persons.
(iv) The conversion rights of holders of the Junior Subordinated Notes and the corresponding conversion rights of Holders of Trust Securities shall expire either (i) at the close of business on the Business Day immediately preceding prior to the Redemption Date date set for redemption of the Trust Securities upon the mandatory or optional redemption of the Junior Subordinated Notes or (2ii) at the close of business on the Business Day immediately preceding prior to the Maturity Datematurity of the Junior Subordinated Notes.
(v) Each Holder of a Trust Security by its acceptance thereof initially appoints Bankers Trust Company not in its individual capacity but solely as conversion agent (the "Conversion Agent") for the purpose of effecting the conversion of Trust Securities in accordance with this Section. In effecting the conversion and transactions described in this Section, the Conversion Agent shall be acting as agent of the Holders of Trust Securities directing it to effect such conversion transactions. The Conversion Agent is hereby authorized (i) to exchange Trust Securities from time to time for Junior Subordinated Notes held by the Trust in connection with the conversion of such Trust Securities in accordance with this Section and (ii) to convert all or a portion of the Junior Subordinated Notes into Common StockStock and thereupon to deliver such shares of Common Stock or cash, at a conversion rate (as the “Conversion Rate”) case may be, in accordance with the provisions of 81.2 shares per $1,000 this Section and to deliver to the Property Trustee any new Junior Subordinated Note or Junior Subordinated Notes for any resulting unconverted principal amount of delivered to the Notes Conversion Agent by the Indenture Trustee.
(plus cash in lieu of vi) No fractional shares of Common Stock will be issued as a result of conversion, but, in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined lieu thereof, such fractional interest will be paid in accordance with Section 13(d) of cash by the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice Depositor to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal Agent in an amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu Current Market Price of the fractional shares) if the Daily VWAP share of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion EventStock, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (will in turn make such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added payment to the principal amount Holder or Holders of such Note being Trust Securities so converted.
(dvii) If a Holder exercises its right Nothing in this Section 4.05 shall limit the requirement of the Trust to require the Company to repurchase its Notes withhold taxes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date terms of the provision Trust Securities or as set forth in this Trust Agreement or otherwise required of the Optional Conversion Notice and ending with Property Trustee or the effectiveness Trust to pay any amounts on account of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionwithholdings.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At The initial Conversion Rate is 13.9559 shares of Common Stock per $1,000 Principal Amount at Maturity of Securities, subject to adjustment in certain events described in the Indenture. A Holder that surrenders Securities for conversion will receive cash in lieu of any time following fractional share of Common Stock based on the receipt closing price of the Required Stockholder Approval and Common Stock on the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, trading day immediately prior to the earliest conversion date.
(b) Holders may surrender Securities for conversion into shares of Common Stock if the Sale Price of the Common Stock for at least 20 trading days in the 30 trading day period ending on the first day of such Conversion Period is more than 110% of the Accreted Conversion Price as determined by the Conversion Agent on the first day of the Conversion Period. The "Sale Price" of the Common Stock on any date means the closing per share sale price (1or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average asked prices) on such date as reported on the NYSE or, if applicablethe Common Stock is not listed on the NYSE, with respect then on the principal other national or regional securities exchange on which the Common Stock then is listed or, if the Common Stock is not listed on a U.S. national or regional securities exchange, as reported on the National Association of Securities Dealers Automated Quotation System or, if the Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, on the principal other market on which the Common Stock is then traded. In the absence of such quotations, the Company will be entitled to determine the Sale Price on the basis of such quotations as the Company considers appropriate. A "Conversion Period" will be the period from and including the thirtieth trading day in a Note fiscal quarter to but not including the thirtieth trading day in the immediately following fiscal quarter.
(c) A Holder may also surrender for conversion into shares of Common Stock a Security or portion of a Security which has been called for redemptionredemption pursuant to Paragraph 5 hereof, and such Securities may be surrendered for conversion until the close of business on the Business Day immediately preceding prior to the Redemption Date Date. A Security in respect of which a Holder has delivered a Purchase Notice or (2) a Change in Control Purchase Notice exercising the close option of business on such Holder to require the Business Day immediately preceding Company to purchase such Security may be converted only if such notice of exercise is withdrawn in accordance with the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount terms of the Notes Indenture.
(plus cash in lieu of fractional d) (i) Holders may also surrender Securities for conversion into shares of Common Stock during the five Business Day period beginning 10 Business Days following any consecutive 10 trading-day period in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) which the average of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99Trading Prices for a Security was less than 95% of the outstanding shares average Parity Value (as defined below) for that period. The "Trading Price" of Common Stock upon conversion the Securities on any date of determination means the average of the secondary market bid quotations per Security obtained by the Calculation Agent for $5,000,000 Principal Amount at Maturity of the Securities at approximately 3:30 p.m., New York City time, on such Holder’s Notes determination date from three independent nationally recognized securities dealers selected by the Company; provided, however, that if at least three such bids cannot reasonably be obtained by the Calculation Agent, but two such bids are obtained, then the average of the two bids shall be required to provide 61 days’ written notice to used, and if only one such bid can reasonably be obtained by the Company prior to any such conversionCalculation Agent, this one bid shall be used. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
If the Calculation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of maturity of the Securities from a nationally recognized securities dealer or in the reasonable judgment of the Company, the bid quotations are not indicative of the secondary market value of the Securities, then the trading price of the Securities will equal (a) the then-applicable conversion rate of the Securities multiplied by (b) Following the receipt closing price on the NYSE of the Required Stockholder Approval and the effectiveness Common Stock on such determination date. The "Parity Value" of the Charter Amendment, Securities on any date of determination means the Company shall convert product of (x) the “Mandatory Conversion”Sale Price of the Common Stock on such date and (y) any outstanding Notes into a the number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of including fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect shares into which such Securities are convertible on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Indenture (Manpower Inc /Wi/)
Conversion. (a) At any time following Subject to the receipt next two succeeding sentences, a Holder of a Security may convert this Security for Common Stock of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, Company at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note maturity. If this Security is called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) Holder may convert it at any time before the close of business on the Business last Trading Day immediately preceding prior to the Maturity Redemption Date, into . A Security in respect of which a Holder has delivered a notice of exercise of the option to require the Company to repurchase such Security or to repurchase such Security in the event of a Fundamental Change may be converted only if the notice of exercise is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is 6.797 shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal Principal Amount, subject to adjustment in certain events described in the Indenture. The Company will deliver Cash or a check in lieu of any fractional share of Common Stock. The Holders' right to convert Securities into shares of Common Stock is subject to the Company's right to elect to instead pay such Holder the amount of Cash set forth in the Notes next succeeding sentence in lieu of delivering such shares of Common Stock; PROVIDED, HOWEVER, that if such payment of Cash is not permitted pursuant to the provisions of the Indenture or the provisions of any other agreement or instrument to which the Company is a party or by which it is bound or otherwise, the Company shall deliver shares of Common Stock (plus cash and Cash in lieu of fractional shares of Common Stock Stock) in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) Article 11 of the Exchange Act and Indenture, whether or not the rules and regulations promulgated thereunder) Company has delivered a notice pursuant to Section 11.02 to the effect that the Securities will he paid in excess Cash. The amount of 9.99% Cash to he paid for each $1,000 Principal Amount of a Security shall be equal to the outstanding Sale Price of a share of Common Stock on the Trading Day immediately prior to the related Conversion Date multiplied by the Conversion Rate in effect on such Trading Day. The Company shall not pay Cash in lieu of delivering shares of Common Stock upon the conversion of such Holder’s Notes shall be required to provide 61 days’ written notice any Security pursuant to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt terms of Article 11 of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert Indenture (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash other than Cash in lieu of fractional shares) if there has occurred (prior to, on or after, as the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Eventcase may be, the Conversion Date or the date on which the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the delivers its notice of the Mandatory Conversion Event.
(c) Interest whether each Security shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being he converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise Cash) and is continuing an Event of Default (other than a default in such payment on such Securities), provided, however, that this sentence shall not apply in the event that an Event of Default occurs after such Cash is paid. In the event the Company exercises its option pursuant to Section 12.01 of the Indenture to have interest in lieu of Original Issue Discount accrue on the Security following a Tax Event, the Holder will be entitled on conversion to receive the same number of shares of Common Stock such Holder would have received if the Company had not exercised such option. If the Company exercises such option, Securities surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business of such Interest Payment Date (except Securities to be redeemed on the next Interest Payment Date) must be accompanied by payment of an amount equal to the interest thereon that the registered Holder is to receive. Except where Securities surrendered for conversion must he accompanied by payment as described above, no interest on converted Securities will he payable by the Company on any Interest Payment Date subsequent to the date of conversion. To convert this Security a Holder must (1) complete and manually sign the conversion notice on the back of this Security (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender this Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar tax, if required. A Holder may convert a portion of this Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the Common Stock except as provided in the Indenture. On conversion of this Security, that portion of accrued Original Issue Discount attributable to the period from the Issue Date to the Conversion Date with respect to the converted portion of this Security shall not be canceled, extinguished or forfeited, but rather shall be deemed to be an “affiliate” paid in full to the Holder thereof through the delivery of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(ftogether with any cash payment in lieu of fractional shares) At in exchange for the request portion of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion this Security being converted pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)the terms hereof.
Appears in 1 contract
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes Gemini shall have the right option to convert its respective outstanding Loan Amount and accrued and unpaid interest (the "Conversion Amount") pursuant to this Agreement, into such number of fully paid and non-assessable shares of the Parent's Preferred Stock, par value $0.0001 per share (“Optional ConversionIXI Stock”) their outstanding Notesas determined by dividing (A) Gemini's Conversion Amount by (B)$34.50, at any time appropriately adjusted for stock dividends, stock splits and from time other recapitalizations subsequent to time, on any Business Day, the date of the Parent's most recent publicly available securities law filing prior to the earliest execution of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.this Agreement..
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of No fractional shares of Common Conversion Stock per $1,000 principal amount shall be issued upon an Optional Conversion. If, upon an Optional Conversion, a fraction of Notes equal to the Conversion Rate a share would otherwise result, then in effect (plus cash in lieu of such fractional shares) if share the Daily VWAP Parent will pay the cash value of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Eventfractional share.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the An Optional Conversion or shall be effectuated by Gemini by furnishing the Mandatory Parent at any time, a notice indicating Gemini’s Conversion Amount and otherwise evidencing Gemini's intention to convert its respective Conversion Amount (such date, the “Conversion DateNotice”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted...
(d) If a Holder exercises its right The date on which the Conversion Participant delivers the Conversion Notice, duly executed, to require the Company Parent shall be deemed to repurchase its Notes pursuant be the date of Optional Conversion (the “Optional Conversion Date”) for the purposes of determining the Conversion Amount. Facsimile delivery of the Conversion Notice shall be accepted by the Parent. Certificates representing the shares of Conversion Stock issuable upon an Optional Conversion, containing the restrictive legend then in effect, will be delivered to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offerthe Conversion Participant as soon as practicable after the Optional Conversion Date.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Any Conversion pursuant to Section 12.01(a), at any time beginning on the date Amount converted into Conversion Stock will be deemed fully paid and all Obligations relating thereto will be deemed fully satisfied. Upon issuance of the provision of the Optional Conversion Notice conversion stock, such shares shall be duly and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionvalidly issued.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)."
Appears in 1 contract
Sources: Letter Agreement (IXI Mobile, Inc.)
Conversion. (ai) At any time following Conversions at Option of Holder. Each share of Preferred ------------------------------- Stock shall be convertible into shares of Common Stock (subject to the receipt limitations set forth in Section 5(a)(iii) hereof) at the Conversion Ratio (as defined in Section 7) at the option of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notesa Holder, at any time and from time to time, on any Business Day, prior to from and after the earliest earlier of (1i) if applicableninety (90) days following the Original Issue Date and (ii) the date on which the Underlying Securities Registration Statement (as defined in Section 7) is declared effective by the Securities and Exchange Commission (the "Commission") (the earlier of such 90 days and such effective date being hereinafter referred to as the "Initial Conversion Date"), with respect provided that any conversions of Preferred Stock by a Holder shall be limited in -------- each monthly period to a Note called for redemption, twenty-five percent (25%) of the close number of business shares of Preferred Stock originally issued to such Holder on the Business Original Issue Date, on a cumulative basis (for example, during the first month following the Initial Conversion Date, a Holder may convert up to 25% of the number of shares of Preferred Stock issued to it on the Original Issue Date and during the second month following the Initial Conversion Date, a Holder may convert, on an aggregate to date basis, up to 50% of the number of shares of Preferred Stock issued to it on the Original Issue Date), provided, that notwithstanding the -------- preceding clause, a Holder may convert, during any monthly period after the Initial Conversion Date, up to fifty percent (50%) of the number of shares of Preferred Stock originally issued to such Holder on the Original Issue Date, on a cumulative basis, if (A) the Average Daily Trading Volume (as defined in Section 7) exceeds 500,000 shares for the ten (10) Trading Day period immediately preceding any Conversion Date and (B) the average Per Share Market Value for such 10 Trading Day Period is no more than five percent (5%) lower than the Per Share Market Value on the Trading Day immediately preceding the Redemption Date first day of such 10 Trading Day period. A Holder shall effect conversions by surrendering the certificate or (2) certificates representing the close shares of business on Preferred Stock to be converted to the Business Day immediately preceding Company, together with the Maturity Date, into Common Stock, at a form of conversion rate notice attached hereto as Exhibit A (the “"Conversion Rate”) Notice"). Each --------- ----------------- Conversion Notice shall specify the number of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Preferred Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own to be converted, the date on which such conversion is to be effected, which date may not be prior to the date the holder delivers such Conversion Notice by ----------------- facsimile (as determined in accordance with Section 13(dthe "Conversion Date") of the Exchange Act and the rules manner by which such holder elects to have the Conversion Price determined as specified in Section 5(c)(i)(A) and regulations promulgated thereunder(B) hereof. If no Conversion Date is specified in excess of 9.99% of a Conversion Notice, the outstanding shares of Common Stock upon conversion of such Holder’s Notes Conversion Date shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The date that the Conversion Rate Notice is subject to adjustment deemed delivered pursuant to Section 12.06.
(b5(i). Subject to Sections 5(b) Following and 5(a)(ii) hereof, each Conversion Notice, once given, shall be irrevocable. If the receipt Holder is converting less than all of the Required Stockholder Approval and shares of Preferred Stock represented by the effectiveness of certificate or certificates tendered by the Charter Amendmentholder with the Conversion Notice, or if a conversion hereunder cannot be effected in full for any reason, the Company shall convert promptly deliver to such holder (in the “Mandatory Conversion”manner and within the time set forth in Section 5(b)) any outstanding Notes into a certificate for such number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) as have not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being been converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Series D Convertible Preferred Stock Purchase Agreement (Fonix Corp)
Conversion. (a) At any time following The mode of carrying the receipt of the Required Stockholder Approval Merger into effect and the effectiveness manner and basis of converting the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding Epilogue into shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionNextPath are as follows:
9.1. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a aggregate number of shares of Epilogue Common Stock per $1,000 principal amount of Notes equal to issued and outstanding on the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP Merger Date shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into an aggregate of 150,000 shares of NextPath Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day adjusted by any increase for at least 15 consecutive Trading Days fractional shares and reduced by any Dissenting Shares (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”defined below). The accrued NextPath Common Stock to be issued hereunder ("the NextPath Shares") will be issued pursuant to Rule 506 of the General Rules and unpaid interest on any Note being converted Regulations of the Securities and Exchange Commission, will be restricted as to transferability pursuant to Rule 144 thereof, and will bear substantially the following legend: The securities represented by this certificate have not been registered under the United States Securities Act of 1933 (the "Act") and are "restricted securities" as that term is defined in Rule 144 under the Act The securities may not be offered for sale, sold or otherwise transferred except pursuant to an Optional Conversion effective registration statement under the Act, or Mandatory Conversion pursuant to an exemption from registration under the Act, the availability of which is to be established to the satisfaction of the Company. NextPath agrees to file a registration statement covering the NextPath Shares with the Securities and Exchange Commission within six months of the effective date of this Agreement.
9.2. Upon completion of the Merger, there shall be added 30,122,031 shares of NextPath Common Stock issued and outstanding, subject to such adjustments, held as follows: 150,000 common shares held by the former shareholders of Epilogue and 29,972,031 common shares held by the other shareholders of NextPath.
9.3. All outstanding Common or Preferred Stock of Epilogue and all warrants, options or other rights to its Common or Preferred Stock shall be retired and canceled as of the Merger Date.
9.4. Each share of Epilogue Common Stock that is owned by Epilogue as treasury stock shall, by virtue of the Merger and without any action on the part of Epilogue, be retired and canceled as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of NextPath Common Stock issued and outstanding on the Merger Date or held by NextPath in its treasury shall continue to evidence ownership of the same number of shares of NextPath Common Stock.
9.6. NextPath Common Stock shall be issued to the principal amount holders of such Note being converted.
(d) If Epilogue Common Stock in exchange for their shares on a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer pro rata basis in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into each holder's relative ownership of the Epilogue Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offerthat is being exchanged.
9.7. The shares of NextPath Common Stock to be issued in exchange for Epilogue Common Stock hereunder shall be proportionately reduced by any shares owned by Epilogue shareholders who shall have timely objected to the Merger (ethe "Dissenting Shares") In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) the provisions of the Exchange Act and the rules and regulations promulgated thereunder) in excess General Corporation Law of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversionDelaware, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversionas provided therein.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter AmendmentSubject to compliance with Section 11.02, Holders of the Notes a Holder shall have the right to convert all or any portion (the if such portion is $2,000 principal amount or an integral multiple of $1,000 principal amount) of its Notes (“Optional Early Conversion”) their outstanding Notes), at any time and from time to time, on any Business Day, prior to the earliest of (1i) if applicable, the close of business on the fifth Business Day following the date of a Mandatory Conversion Notice delivered in accordance with Section 11.01(b), (ii) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2iii) the close of business on the Business Day immediately preceding the Maturity Datematurity date, into a number of shares of Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares Stock per $1,000 principal amount of Notes being converted equal to the Notes Conversion Rate then in effect (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.0311.03); provided that any . In addition, upon an Early Conversion, a Holder shall have the right to receive in cash, with respect to its Notes being converted, per $1,000 principal amount of Notes who would beneficially own being converted, (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunderx) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required event the Early Conversion Date occurs on or prior to provide 61 days’ written notice September 23, 2017, the Early Conversion Payment and (y) in all cases, accrued and unpaid interest to the Company prior Early Conversion Date. For the avoidance of doubt, in the event of an Early Conversion with an Early Conversion Date after September 23, 2017, Holders shall not be entitled to any such conversion. The receive the Early Conversion Rate is subject to adjustment pursuant to Section 12.06Payment.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the The Company shall have the right to convert the Notes (the “Mandatory Conversion”) any outstanding Notes ), in whole or in part, into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional sharesshares of Common Stock in accordance with Section 11.03), if each of the following conditions are satisfied: (i) if the Daily VWAP of the Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 20 Trading Days (whether or not consecutive) during any period of 30 consecutive Trading Days (the “Mandatory Conversion EventVWAP Condition”). Upon the occurrence of the Mandatory Conversion Event, ) and (ii) the Company shall deliver notice delivers to the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not notice of the Company’s election of its right to convert the Notes no later than the open of business on the second business day third Business Day immediately following the 20th Trading Day of any such 30 Trading Day period (a “Mandatory Conversion EventNotice”), which notice shall specify that the Mandatory Conversion shall occur not later than on the third business day sixth Business Day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion such notice (such date, the “Mandatory Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant ; provided that, the Company’s right to an Optional Conversion or cause a Mandatory Conversion shall be added to suspended during the principal amount of such Note being converted.
(d) If a Holder exercises its right to require period beginning on the Company to repurchase its Notes pursuant to a Prepayment Offer or date a Change of Control Offer in accordance with Section 4.10 or Section 4.15is made and continuing to, respectivelyand including, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or the applicable Change of Control Offer.
(e) In Settlement Date. For the avoidance of doubt, in the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion, Holders shall not be entitled to receive the Early Conversion pursuant to Payment or, except as provided in Section 12.01(b11.02(f), at any time beginning with accrued and unpaid interest. The Mandatory Conversion Notice shall state that the Company is exercising its right to cause a Mandatory Conversion, the Conversion Rate and Conversion Price in effect on the Mandatory Conversion Date. Notwithstanding the foregoing, the Company may only exercise its right to cause a Mandatory Conversion if, as evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent (if other than the Trustee) on the Mandatory Conversion Date, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing on, and including, the date of the Mandatory Conversion Event Notice and (y) ending 30 calendar days following on, and including, the effectiveness of such conversion, that such Holder will beneficially own Mandatory Conversion Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as determined in accordance with Section 13(dfollows:
(i) of the Exchange Act and the rules and regulations promulgated thereundereither (1) in excess of 9.99% of the outstanding all shares of Common Stock or otherwise be deemed to be an “affiliate” issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for purposes sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such conversion.shelf registration statement to remain effective and available for use from the Mandatory Conversion Date until thirty days following the Mandatory Conversion Date;
(fii) At the request Common Stock (or other security into which the Notes are convertible pursuant to Section 11.11) to be delivered on such conversion is listed or traded on The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market, or any of their respective successors (each, an “Eligible Market”) and shall not then be suspended from trading on such Eligible Market;
(iii) at or prior to the settlement date of the Mandatory Conversion, for any HolderNotes validly surrendered for conversion with an Early Conversion Date prior to the Mandatory Conversion Date in accordance with the terms of this Indenture, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of the Notes to the Holders in accordance with Section 11.01(a);
(iv) shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of The New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and
(v) no Event of Default shall have occurred and be continuing. For the avoidance of doubt, the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant may exercise its right to Section 12.01(a) or cause more than one Mandatory Conversion pursuant so long as any Notes are outstanding so long as it complies with the other requirements of this Section 11.01(b). If the Company exercises its right to Section 12.01(bcause Mandatory Conversion in part, the Conversion Agent will select the Notes to be converted pro rata, by lot or by any other method the Conversion Agent in its sole discretion deems fair and appropriate (or, in the case of Notes represented by Global Notes, in such manner as DTC may require), in denominations of $2,000 or any integral $1,000 multiple in excess thereof.
Appears in 1 contract
Sources: Second Supplemental Indenture (Whiting Petroleum Corp)
Conversion. Subject to Section 1 hereof, the Holder may convert this Warrant (a) At any time following the receipt "Conversion Right"), in whole or in part, into the number of shares of Common Stock of the Required Stockholder Approval and Company calculated pursuant to the effectiveness following formula by surrendering this Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly executed) at the principal office of the Charter Amendment, Holders Company specifying the number of shares of Common Stock of the Notes shall have Company, the right convert rights to purchase which the Holder desires to convert: X = Y (A - B) -------- A where: X = the “Optional Conversion”) their outstanding Notes, at any time and from time number of shares of Common Stock to time, on any Business Day, prior be issued to the earliest Holder; Y = the number of (1) if applicableshares of Common Stock subject to this Warrant for which the Conversion Right is being exercised; A = the fair market value of one share of Common Stock; B = the Warrant Price. As used herein, the fair market value of a share of Common Stock shall mean, with respect to each share of Common Stock, the closing price per share of the Company's Common Stock on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not then listed or admitted to trading on any such exchange, on the NASDAQ National Market System, or if not then listed or traded on any such exchange or system, the mean of the bid and asked price per share on NASDAQ Small-Cap Market or in the sole discretion of a Note called majority of the Board of Directors of the Company, any other over-the-counter market, including the OTC Bulletin Board, which reports bid, asked and last sale prices and volume of sales (approval of which will not be unreasonably withheld by such directors), averaged over the 10 trading days consisting of the day as of which the current fair market value of Common Stock is being determined and the 9 consecutive business days prior to such day. If at any time such quotations are not available, the current fair market value of a share of Common Stock shall be the highest price per share which the Company could obtain from a willing buyer (not a current employee or director) for redemptionshares of Common Stock sold by the Company, from authorized but unissued shares, as determined in good faith by the Board of Directors of the Company, unless (i) the Company shall become subject to a merger, acquisition or other consolidation pursuant to which the Company is not the surviving party, in which case the current fair market value of a share of Common Stock shall be deemed to be the value received by the holders of the Company's Common Stock for each share of Common Stock pursuant to the Company's acquisition; or (ii) the Holder shall exercise its Conversion Right to purchase such shares within 15 days prior to the closing date of the initial underwritten public offering of the Company's Common Stock pursuant to a registration statement filed under the Act, in which case, the fair market value of a share of Common Stock shall be the price per share at which all registered shares are sold to the public in such offering. The Company agrees that the shares so converted shall be deemed to be issued to the holder hereof as the record owner of such shares as of the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business date on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (which this Warrant shall have been surrendered as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversionaforesaid. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that of any Holder notified the Company (1) in the case conversion of an Optional Conversion pursuant to Section 12.01(a)this Warrant, at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company certificates for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At stock so converted shall be delivered to the request of any Holderholder hereof within 15 days thereafter and, unless this Warrant has been fully converted or expired, a new Warrant representing the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” portion of the Company for purposes of shares, if any, with respect to which this Warrant shall not then have been converted, shall also be issued to the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)holder hereof within such 15 day period.
Appears in 1 contract
Sources: Series J Convertible Preferred Stock Purchase Agreement (Viacell Inc)
Conversion. The Loan and the Note will convert as follows:
(a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time to time, on any Business DayIf, prior to the earliest of (1) if applicable, with respect to a Note called for redemptionMaturity Date, the close Borrower consummates a Qualifying Private Placement, issuing Qualifying Shares at a cash consideration paid of business $10 or more per share, the principal portion of the Note shall automatically convert (as of the date of consummation of the Qualifying Private Placement) into Qualifying Shares which shall represent 2.68% of the total issued and outstanding stock of the Borrower immediately after the consummation of the Qualifying Private Placement, on the Business Day immediately preceding the Redemption Date or a fully diluted basis and shall not have less rights than those described in Exhibit 2 attached to this Agreement; or
(2b) the close of business on the Business Day immediately preceding If, prior to the Maturity Date, into Common Stockthe Borrower consummates a Qualifying Private Placement, issuing Qualifying Shares at a conversion rate cash consideration paid of less than $10 per share, the Note shall automatically convert (as of the “Conversion Rate”date of consummation of the Qualifying Private Placement) into that number of 81.2 shares per $1,000 Qualifying Shares equal to the outstanding principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) Note divided by the offering price for Qualifying Shares pursuant to the terms of the Exchange Act and Qualifying Private Placement; provided, that in no event shall such Qualifying Shares received by the rules and regulations promulgated thereunder) in excess of 9.99% Lender represent less than 2.68%, on a fully diluted basis, of the total issued and outstanding shares stock of Common Stock upon conversion the Borrower immediately after the consummation of such Holder’s Notes the Qualifying Private Placement and shall be required not have less rights than those described in Exhibit 2 attached to provide 61 days’ this Agreement;
(c) At any time, prior to the Maturity Date, at the request of the Lender, it may convert the Note into common stock or, at its selection, any other then outstanding stock of the Borrower more senior to the common stock, on ten days prior written notice given to the Company prior to any such conversionBorrower. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company Note shall convert (the “Mandatory Conversion”) any outstanding Notes into a that number of shares of Common Stock per $1,000 stock of the Borrower equal to 2.68%, on a fully diluted basis, of the total issued and outstanding stock of the Borrower on such conversion date and shall not have less rights than those described in Exhibit 2 attached to this Agreement. Upon conversion of this Note, interest accrued on the principal amount of Notes equal the Loan to such date shall be paid to the Conversion Rate then Lender at the Office or such other place as may be designated by the Lender in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal a written notice given to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion EventBorrower, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer conversion in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company Note is converted upon Section 2.7 (1c) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning or on the date of the provision consummation of the Optional Conversion Notice Qualifying Private Placement and ending with in the effectiveness latter case the interest may be paid out of such Optional Conversionthe proceeds thereof. The Lender hereby agrees in the event of a conversion under Sections 2.7 (a) or (b), (i) to enter into all agreements and other documents generally applicable to purchasers of Qualifying Shares in the Qualifying Private Placement and (2ii) in upon issuance of the case Qualifying Shares to the Lender or its designee and upon payment to the Lender of a Mandatory Conversion pursuant the interest that accrued on the Note, to Section 12.01(b), at any time beginning with return the Note to the Borrower for cancellation on the date of conversion of the Mandatory Conversion Event Loan and ending 30 calendar days following the effectiveness of such Note. Upon conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) receipt of the Exchange Act Qualifying Shares and payment of interest as described in this Section 2.7 the rules terms and regulations promulgated thereunderprovisions of this Agreement, other than the provisions of Exhibits 2, 2 (a) in excess and 2(b) shall automatically terminate and be of 9.99% of the outstanding shares of Common Stock no further force or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversioneffect.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Loan Agreement (Morgan Gary D)
Conversion. (a) At any time following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, Holders of the Notes The Securityholders shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time on or after [ ________, 2000] and from time to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date date of repayment of such Trust Securities, whether at maturity or upon redemption (2) either at the close option of business the Depositor or pursuant to a Tax Event, an Investment Company Event or a Capital Treatment Event), at their option, to cause the Conversion Agent to convert Trust Securities, on behalf of the Business Day immediately preceding the Maturity Dateconverting Holders, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes Common Stock in the manner described herein on and subject to the following terms and conditions:
(plus cash in lieu a) The Trust Securities shall be convertible at the office of fractional the Conversion Agent into fully paid and nonassessable shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) pursuant to the Holder's direction to the Conversion Agent to exchange such Trust Securities for a portion of the Exchange Act Debentures theretofore held by the Trust on the basis of one Security per $10 principal amount of Debentures, and the rules immediately convert such amount of Debentures into fully paid and regulations promulgated thereunder) in excess of 9.99% of the outstanding nonassessable shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness Depositor at an initial conversion rate of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of [__________ ] shares of Common Stock per $1,000 10 principal amount of Notes equal Debentures (which is equivalent to an initial conversion price of $[__________ ] per share of Common Stock), subject to certain adjustments set forth in the terms of the Debentures (as so adjusted, the "Conversion Ratio"). The number of shares issuable upon conversion of the principal amount of Debentures shall be determined by dividing such principal amount by [ __ ] and multiplying the quotient so obtained by the Conversion Ratio.
(b) In order to convert Trust Securities into Common Stock, the Holder must submit to the Conversion Rate then in effect Agent an irrevocable request to convert Trust Securities on behalf of such Holder (plus cash in lieu of fractional shares) the "Conversion Request"), together, if the Daily VWAP Trust Securities are in certificated form, with such Trust Security Certificates. The Conversion Request shall (i) set forth the number of the Common Stock exceeds or is equal Trust Securities to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee be converted and the Conversion Agent (name or names, if other than the Trustee) (such noticeHolder, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, in which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise be deemed to be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon such conversion.
(f) At the request of any Holdershould be issued, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).and
Appears in 1 contract
Conversion. (a) At any time following the receipt approval of the Required Stockholder Approval Proposal by the Company’s stockholders and the effectiveness of the Charter Amendment, Holders of the Notes shall have the right convert (the “Optional Conversion”) their outstanding Notes, at any time and from time up to time, on any Business Day, prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, the then outstanding Obligations under this Note (or any portion thereof) may be converted into fully paid and nonassessable shares of Company Common Stock, at a conversion rate $0.0001 par value per share (the “Conversion RateShares”) ), at the sole election of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock Lender upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendment, the Company shall convert (the “Mandatory Conversion”) any outstanding Notes into a number of shares of Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or is equal to the Threshold Price in effect on each applicable Trading Day for at least 15 consecutive Trading Days (the “Mandatory Conversion Event”). Upon the occurrence of the Mandatory Conversion Event, the Company shall deliver notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event), which notice Conversion Notice shall specify that state the Mandatory Conversion proposed effective date of such conversion (which date shall occur not later be no fewer than the third ten (10) business day days following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence delivery of the Optional Conversion or the Mandatory Conversion Notice) (such date, the “Conversion Date”). The accrued and unpaid interest on Obligations hereunder shall convert at a conversion price equal to $5.70 per share, subject to adjustment for any Note being converted pursuant to an Optional Conversion stock dividend, stock split, combination or Mandatory Conversion shall be added other similar recapitalization event with respect to the principal amount of such Note being convertedCompany’s Common Stock (the “Conversion Price”).
(db) If a Holder exercises its right Upon the Conversion Date, Lender hereby agrees to require deliver the original of this Note to the Company to repurchase its Notes pursuant to a Prepayment Offer for cancellation (or a Change of Control Offer in accordance with Section 4.10 notice to the effect that the original Note has been lost, stolen or Section 4.15, respectively, such Holder may convert its Notes into Common Stock only if destroyed and an agreement acceptable to the Company whereby Lender agrees to indemnify the Company from any loss incurred by it withdraws its election to have its Notes repurchased in connection with such Prepayment Offer this Note); provided, however, that upon the Conversion Date, this Note (or Change portion thereof) shall be deemed converted and of Control Offerno further force and effect, whether or not it is delivered for cancellation as set forth in this sentence.
(ec) In On or before the event that any Holder notified second Trading Day following the Conversion Date (the “Share Delivery Date”), the Company shall, (1i) provided that the Company’s transfer agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program (the case “FAST Program”) and so long as the certificates therefor are not required to bear a legend regarding restriction on transferability, upon the request of an Optional Conversion pursuant to Section 12.01(a)Lender, at any time beginning on the date credit such aggregate number of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock to which Lender is entitled pursuant to such exercise to Lender’s or otherwise be deemed its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (ii), if the Company’s transfer agent is not participating in the FAST Program or if the certificates are required to be an “affiliate” bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address as specified in the Conversion Notice, a certificate, registered in the Company’s share register in the name of Lender or its designee, for the Company for purposes number of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the shares of Common Stock received upon to which Lender is entitled pursuant to such conversion.
(f) At exercise. Upon the request Conversion Date, Lender shall be deemed for all corporate purposes to have become the holder of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” record of the Company for purposes Conversion Shares with respect to which this Note (or portion thereof) has been converted, irrespective of the Securities Act and/or date such Conversion Shares are credited to the Exchange Act upon any Optional Holder’s DTC account or the date of delivery of the certificates evidencing such Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b)Shares, as the case may be.
Appears in 1 contract
Conversion. The outstanding principal of this Note, all accrued and unpaid interest thereon and other amounts in respect thereto shall be converted, if the Holder so elects, into NaviSite common stock, par value $0.01 per share (the "COMMON STOCK") in accordance with this Section 9. Subject to any express grace or cure periods set forth herein, upon the written election of the Holder and without payment of any additional consideration, this Note shall be converted into such whole number of fully paid and nonassessable shares of Common Stock as is determined by dividing (A) all or a portion, as elected by the Holder, of the then outstanding principal of this Note, accrued and unpaid interest thereon, and any other amounts due in respect thereto by (B) $____________, [AVERAGE CLOSING PRICE FOR THE TEN TRADING DAYS ENDING ONE DAY PRIOR TO CLOSING] (such formula, the "CONVERSION FORMULA"), with such Conversion Formula to be appropriately adjusted to account for stock dividends, stock splits, reverse stock splits, stock combinations or other events. No fractional shares shall be issued, and the number of shares resulting from the Conversion Formula shall be rounded down to the nearest whole share. Any election by the Holder pursuant to this Section 9 shall be made by written notice to NaviSite, and such notice may be given:
(a) At at any time following the receipt first anniversary of the Required Stockholder Approval date hereof until the eighteen (18) month anniversary hereof if the combined principal amount of the Primary Note and the effectiveness Escrow Note then outstanding as of the Charter Amendment, Holders first anniversary is greater than or equal to $20,000,000;
(b) at any time following the eighteen (18) month anniversary hereof if the combined principal amount of the Notes shall have Primary Note and the right convert Escrow Note outstanding as of said date is greater than or equal to $10,000,000;
(the “Optional Conversion”c) their outstanding Notes, at any time and from time to timetime after the second anniversary hereof; or
(d) after the occurrence of an Event of Default, on any Business Day, provided that if such Event of Default occurs prior to the earliest of (1) if applicable, with respect to a Note called for redemption, the close of business on the Business Day immediately preceding the Redemption Date or (2) the close of business on the Business Day immediately preceding the Maturity Date, into Common Stock, at a conversion rate (the “Conversion Rate”) of 81.2 shares per $1,000 principal amount of the Notes (plus cash in lieu of fractional shares of Common Stock in accordance with Section 12.03); provided that any Holder of Notes who would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock upon conversion of such Holder’s Notes shall be required to provide 61 days’ written notice to the Company prior to any such conversion. The Conversion Rate is subject to adjustment pursuant to Section 12.06.
(b) Following the receipt of the Required Stockholder Approval and the effectiveness of the Charter Amendmentstockholder's approval contemplated by Section 5.18 of the Purchase Agreement, then this Note and the Company Escrow Note collectively shall convert (the “Mandatory Conversion”) any outstanding Notes not be convertible into a number of shares of NaviSite's Common Stock per $1,000 principal amount of Notes equal to the Conversion Rate then in effect (plus cash in lieu of fractional shares) if the Daily VWAP of the Common Stock exceeds or that is equal to or greater than the Threshold Price Share Cap unless and until NaviSite has obtained the effective approval of its stockholders of those matters described in effect Section 5.18 of the Purchase Agreement. Notwithstanding the foregoing, in the event the Holder desires to convert pursuant to Section 9(a) or 9(b), NaviSite may, within 5 days of receipt of the Holder's Conversion Notice, notify the Holder of its good faith intent to pay, within 30 days of NaviSite's receipt of the Conversion Notice, to the Holder an amount that would cause the $20,000,000 threshold in Section 9(a) or the $10,000,000 threshold in Section 9(b), as applicable, to be satisfied if such payment had been made on each the applicable Trading Day for at least 15 consecutive Trading Days anniversary date. In such event, a Holder may only convert pursuant to Section 9(a) or 9(b), as applicable, in the 5 business day period following receipt of NaviSite's notice of its intent to pay. If the Holder does not convert, the restriction on conversion set forth in the previous sentence shall expire on the earlier to occur of (i) receipt from NaviSite of notice that it will not be able to pay such amounts and (ii) 30 days after NaviSite's receipt of the “Mandatory Conversion Event”)Notice. NaviSite shall act in good faith to promptly deliver the notice in clause (i) above in the event it becomes reasonably apparent to NaviSite that NaviSite will not be able to pay such amount in the 30 day period. Upon election to convert, the occurrence Holder shall surrender this Note, duly assigned or endorsed for transfer to NaviSite or shall deliver an affidavit of loss to NaviSite (together with an agreement to indemnify NaviSite in full with respect to any loss actually incurred with respect to the lost Note), at its principal executive office or such other place as NaviSite may from time to time designate by notice to the Holders. Upon surrender of this Note or delivery of an affidavit of loss (together with an agreement to indemnify NaviSite in full with respect to any loss actually incurred with respect to the lost Note), NaviSite shall commence the issuance of, and shall send by hand delivery, by courier or by first class mail (postage prepaid) to the Holder, or to the Holder's designee, at the address designated by the Holder, certificates for the number of shares of Common Stock to which the Holder shall be entitled upon conversion. The issuance of certificates for Common Stock upon conversion of this Note shall be deemed effective as of the Mandatory Conversion Eventdate of surrender of this Note or delivery of such affidavit of loss (together with an agreement to indemnify NaviSite in full with respect to any loss actually incurred with respect to the lost Note) and will be made without charge to the holder of this Note for any issuance tax in respect thereof or other costs incurred by NaviSite in connection with such conversion and the related issuance of such stock. In the event that the Holder elects to convert pursuant to this Section 9 less than all of the then outstanding principal of this Note, accrued and unpaid interest thereon, and any other amounts due in respect thereto, the Company shall deliver notice issue a replacement note with the same terms as this Note and a principal equal to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) (such notice, a “Mandatory Conversion Notice”) not later than the open of business on the second business day following such Mandatory Conversion Event, which notice shall specify that the Mandatory Conversion shall occur not later than the third business day following the notice of the Mandatory Conversion Event.
(c) Interest shall cease to accrue on any Notes on the date of occurrence of the Optional Conversion or the Mandatory Conversion (such date, the “Conversion Date”). The accrued and unpaid interest on any Note being converted pursuant to an Optional Conversion or Mandatory Conversion shall be added to the principal amount of such Note being converted.
(d) If a Holder exercises its right to require the Company to repurchase its Notes pursuant to a Prepayment Offer or a Change of Control Offer in accordance with Section 4.10 or Section 4.15principal, respectively, such Holder may convert its Notes interest and other amounts not converted into Common Stock only if it withdraws by the Holder. NaviSite shall at all times reserve and keep available out of its election to have authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of this Note as provided hereunder, such number of its Notes repurchased in connection with such Prepayment Offer or Change of Control Offer.
(e) In the event that any Holder notified the Company (1) in the case of an Optional Conversion pursuant to Section 12.01(a), at any time beginning on the date of the provision of the Optional Conversion Notice and ending with the effectiveness of such Optional Conversion, and (2) in the case of a Mandatory Conversion pursuant to Section 12.01(b), at any time beginning with the date of the Mandatory Conversion Event and ending 30 calendar days following the effectiveness of such conversion, that such Holder will beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 9.99% of the outstanding shares of Common Stock or otherwise as shall from time to time be deemed sufficient to be an “affiliate” effect the conversion of this Note as provided hereunder; and if at any time the Company for purposes number of the Securities Act and/or the Exchange upon such conversion, then the Company will promptly enter into a Registration Rights Agreement covering the authorized but unissued shares of Common Stock received shall not be sufficient to effect the conversion of this Note as provided hereunder, NaviSite will take such corporate action as may be necessary to increase the number of its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose, and to reserve the appropriate number of shares of Common Stock for issuance upon such conversion. NaviSite and the Holder shall act in good faith in the performance of their respective covenants hereunder.
(f) At the request of any Holder, the Company will use its reasonable efforts to cooperate with such Holder to confirm with brokers that such Holder will not be an “affiliate” of the Company for purposes of the Securities Act and/or the Exchange Act upon any Optional Conversion pursuant to Section 12.01(a) or Mandatory Conversion pursuant to Section 12.01(b).
Appears in 1 contract
Sources: Promissory Note (Navisite Inc)