Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption Period. (a) If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption as provided under Section 16.02, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Period, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d). (b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or of Notes called for redemption with a Conversion Date occurring during the related Redemption Period, the Company shall, at its option, satisfy the related Conversion Obligation in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date. (c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on the Redemption Notice Date, as applicable. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03. (d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04. (e) The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 August 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices and Effective Dates or Redemption Notice Dates may not be set forth in the table above, in which case: (i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 day year, as applicable; (ii) if the Stock Price is greater than $42.50 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and (iii) if the Stock Price is less than $9.65 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04. (f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Sources: Indenture (WisdomTree, Inc.)
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption Period.Adjustment Events
(a) If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption as provided under Section 16.02, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Period, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period at any time from, and including, the Effective Date of the a Make-Whole Fundamental Change up Adjustment Event to, and including, the close of business on (i) the Business Day immediately prior to preceding the related Fundamental Change Repurchase Date Purchase Date, or (or, in the case of a ii) if such Make-Whole Fundamental Change that would have been Adjustment Event does not also constitute a Fundamental Change but for the proviso in clause (b) of the definition thereofChange, the 35th 40th Scheduled Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) Adjustment Event, the Conversion Rate shall be increased by an additional number of shares of Common Stock (such periodshares, the “Make-Whole Fundamental Change PeriodAdditional Shares”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d)below.
(b) Upon surrender of Notes for conversion pursuant to Section 13.01 during the period set forth in clause (a) immediately above in connection with a Make-Whole Fundamental Change or of Notes called for redemption with a Conversion Date occurring during the related Redemption PeriodAdjustment Event, the Company shallshall deliver shares of Common Stock, at its optionincluding the Additional Shares, satisfy the related Conversion Obligation in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date13.02. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the anticipated Effective Date of any Make-Whole Fundamental Change in writing no later Adjustment Event and issue a press release as soon as practicable after the Company first determines the anticipated Effective Date of such Make-Whole Adjustment Event (and make the press release available on the Company’s website). The Company shall use its commercially reasonable efforts to give notice to Holders of the anticipated Effective Date for a Make-Whole Adjustment Event not less than 20 Scheduled Trading Days prior to the anticipated Effective Date. In addition, the Company shall notify the Holders of Notes, the Trustee and the Conversion Agent of the actual Effective Date of any Make-Whole Adjustment Event and issue a press release announcing such Effective Date (and make the press release available on the Company’s website) within five Business Days after following such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions of Notes in connection with a Make-Whole Fundamental Change or a Notice of Redemption Adjustment Event shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change Adjustment Event occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, and (1) the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on of Control in the Redemption Notice Date, as applicable. If the holders case of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described Adjustment Event of the type set forth in clause (b) of the definition of Fundamental Change“Change of Control”, in the event that the Common Stock is acquired for cash, or (2) either (i) if the Common Stock is not listed on a national securities exchange, the Company’s most recent publicly available NAV per share that has been determined in accordance with the Investment Company Act, or (ii) if the Common Stock Price shall be the cash amount paid per share. Otherwiseis listed on a national securities exchange, the Stock Price shall be the average of the Last Reported Closing Sale Prices of the Common Stock over the ten consecutive five Trading Day period ending on, and including, on the Scheduled Trading Day immediately preceding the applicable Effective Date of the such Make-Whole Fundamental Change or the Redemption Notice DateAdjustment Event, as in the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a of any other Make-Whole Fundamental ChangeAdjustment Event (the amount determined under clause (1) or clause (2) immediately above, a Holder of as applicable, the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03“Stock Price”).
(d) The Stock Prices set forth in the column headings of the table below in the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjustedadjusted as set forth in Section 13.04. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.0413.04.
(e) The following table sets forth the number of Additional Shares of Common Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 13.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 August 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices and Effective Dates or Redemption Notice Dates may not be set forth in the table above, in which casecase if the Stock Price is:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 365-day year, as applicable;
(ii) if the Stock Price is greater than in excess of $42.50 20.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) immediately above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 13.01 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) immediately above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Company may not increase the Conversion Rate to more than 76.8640 shares of Common Stock per $1,000 principal amount of Notes exceed 103.6269 shares of Common Stock(the “Maximum Conversion Rate”) pursuant to the events set forth in this Section 13.03; provided, however, the Maximum Conversion Rate shall be subject to adjustment adjustment, for the same events, and at the same time and in the same manner as manner, that the Company must adjust the Conversion Rate pursuant to Section 14.0413.04.
(f) Nothing in this Section 14.03 13.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 13.04 in respect of a Make-Whole Fundamental ChangeAdjustment Event.
Appears in 1 contract
Sources: Second Supplemental Indenture (Trinity Capital Inc.)
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during During a Redemption Period.
(a) If (ix) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (iiy) the Company issues a Redemption Notice of Redemption as provided under pursuant to Section 16.02, 16.02 and a Holder elects to convert such its Notes with a Conversion Date during the related Redemption Period, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion Date occurs during is received by the period Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d).
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii) or upon surrender of Notes called for redemption with during a Conversion Date occurring during the related Redemption Period, the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 14.0214.02 based on the Conversion Rate as increased to reflect the Additional Shares pursuant to the table below; provided, however, that if, at the effective time of a Reference Property in any Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a during the Make-Whole Fundamental Change or a Notice Period or, with respect to conversions of Notes, during the Redemption Period shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, applicable and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Make- Whole Fundamental Change or on the Redemption Notice Date, as applicable, as set forth in this Section 14.03. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. OtherwiseIn the case of any other Make-Whole Fundamental Change or in the case of any Optional Redemption, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03.57
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of for the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
. (e) The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Date / Stock Price Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14May [●], 2020 ............................... May 1, 2021 ............................... May 1, 2022 ............................... May 1, 2023 ............................... May 1, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 August 15............................... May 1, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices and Effective Dates or Redemption Notice Dates may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 day year, as applicable;
(ii) if the Stock Price is greater than $42.50 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.............................
Appears in 1 contract
Sources: Indenture (Neogenomics Inc)
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption PeriodTax Redemptions.
(a) If (i) the Effective Date of either (X) a Make-Whole Fundamental Change occurs prior to the Maturity Date or (Y) the Company delivers a Tax Redemption Notice, and in each case, (ii) a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption as provided under Section 16.02such Tax Redemption, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Period, then the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock ADSs (the “Additional SharesADSs”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion Date occurs during is received by the period Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the third Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period). A conversion of Notes shall be deemed for these purposes to be “in connection with” a Tax Redemption if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the “Make-Whole Fundamental Change Period”). For date the avoidance of doubtCompany delivers a Tax Redemption Notice to, and including, the Company shall not increase the Conversion Rate pursuant Business Day immediately prior to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of related Tax Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption Date (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects fails to redeem fewer than all of pay the outstanding Notes pursuant to Article 16, Holders of Tax Redemption Price (such later date on which the Notes not called for redemption will not be entitled to convert such Notes on account of Company pays the Notice of Tax Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(dPrice)).
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or of Notes called for redemption with a Conversion Date occurring during the related Redemption PeriodChange, the Company shallcause to be delivered ADSs, at its optionincluding the Additional ADSs, satisfy the related Conversion Obligation in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock ADS Price for the transaction and shall be deemed to be an amount of cash per $US$1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the adjustment for Additional SharesADSs), multiplied by such Stock ADS Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the HoldersHolders of Notes, the Trustee and Trustee, the Conversion Agent (if other than and the Trustee) Paying Agent of the Effective Date of any Make-Whole Fundamental Change in writing and issue a press release announcing such Effective Date no later than five Business Days after such Effective Date.
(c) The number of Additional SharesADSs, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on (i) the date on which the Make-Whole Fundamental Change occurs or becomes effective or, in the case of a Tax Redemption, the date on which the Company delivers a Tax Redemption Notice (in each case, the “Effective Date”) or and (ii) in the Redemption Notice Datecase of a Make-Whole Fundamental Change, as applicable, and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock ADS in the connection with such Make-Whole Fundamental Change or or, in the case of a Tax Redemption, the average of the Last Reported Sale Prices of the ADSs over the five Trading-Day period ending on, and including, the Trading Day immediately preceding the date on which the Company delivers a Tax Redemption Notice Date(in each case, as applicablethe “ADS Price”). If the holders of the Common Stock ADSs receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock ADS Price shall be the cash amount paid per share. Otherwise, the Stock ADS Price shall be the average of the Last Reported Sale Prices of the Common Stock over ADSs for each Trading Day during the ten consecutive Trading five Trading-Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or Change. The Board of Directors shall make appropriate adjustments to the Redemption Notice DateADS Price, as the case may be. In the event that a conversion during a Redemption Period would also be deemed in its good faith determination, to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase account for any adjustment to the Conversion Rate with respect that becomes effective, or any event requiring an adjustment to the first to occur of Conversion Rate where the applicable Redemption Notice Date or the Effective Ex-Dividend Date of the applicable Makeevent occurs, during such five consecutive Trading-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03Day period.
(d) The Stock ADS Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock ADS Prices shall equal the Stock ADS Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock ADS Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares ADSs set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares by which ADSs to be added to the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock ADS Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 146, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 2014 2.6910 2.2202 1.8064 1.4840 1.4619 1.2289 1.0243 0.8583 0.5611 0.3718 0.1623 0.0639 August 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 2015 2.6910 2.2715 1.8330 1.4937 1.4706 1.2271 1.0148 0.8438 0.5412 0.3520 0.1474 0.0545 August 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 2016 2.6910 2.3092 1.8425 1.4846 1.4603 1.2060 0.9864 0.8114 0.5068 0.3209 0.1267 0.0425 August 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 2017 2.6910 2.3201 1.8206 1.4427 1.4173 1.1529 0.9278 0.7511 0.4512 0.2748 0.0990 0.0278 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 2018 2.6910 2.2783 1.7402 1.3432 1.3169 1.0464 0.8219 0.6499 0.3691 0.2124 0.0661 0.0123 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 2019 2.6910 2.0256 1.5083 1.1409 1.1166 0.8679 0.6632 0.5085 0.2640 0.1363 0.0298 0.0042 August 15, 2020 2.6910 1.8808 1.3189 0.9203 0.8947 0.6393 0.4423 0.3048 0.1173 0.0417 0.0051 0.0021 August 15, 2021 2.6910 1.7201 0.8110 0.0534 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock ADS Prices and Effective Dates or Redemption Notice Dates may not be set forth in the table above, in which case:
(i) if the Stock ADS Price is between two Stock ADS Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased ADSs shall be determined by a straight-line interpolation between the number of Additional Shares ADSs set forth for the higher and lower Stock ADS Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 365-day year, as applicable;
(ii) if the Stock ADS Price is greater than $42.50 US$300.00 per share (subject to adjustment in the same manner as the Stock ADS Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares ADSs shall be added to the Conversion Rate; and
(iii) if the Stock ADS Price is less than $9.65 US$91.15 per share (subject to adjustment in the same manner as the Stock ADS Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares ADSs shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate total number of ADSs issuable upon conversion exceed 10.9709 per $US$1,000 principal amount of Notes exceed 103.6269 shares of Common StockNotes, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption PeriodNotice of Redemption.
(a) If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues delivers a Notice of Redemption as provided under Section 16.02, 16.02 and a Holder elects to convert its Called Notes in connection with such Notes with a Conversion Date during Notice of Redemption, as the related Redemption Periodcase may be, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such a Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of an Exempted Fundamental Change or a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). A conversion of Notes shall be deemed for these purposes to be “in connection with” a Notice of Redemption if such Notes are Called Notes with respect to such Notice of Redemption and the relevant Conversion Date occurs during the related Redemption Period. For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not called for redemption Called Notes will not be entitled to convert such Notes on account of the Notice of Redemption pursuant to Section 14.01(b)(v) and will not be entitled to an increased increase in the Conversion Rate for conversions of such Notes (on account of the Notice of Redemption Redemption) during the related applicable Redemption Period Period, even if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of convertible pursuant to Section 16.02(d14.01(b)(i)-(iv).
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or a Notice of Notes called for redemption with a Conversion Date occurring during the related Redemption PeriodRedemption, the Company shallshall pay or deliver, at its optionas the case may be, satisfy the related Conversion Obligation Settlement Amount due in respect of such Notes in accordance with Section 14.0214.02 based on the Conversion Rate as increased to reflect the Additional Shares in accordance with this Section 14.03; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective or the date the Company delivers the Notice of Redemption, as the case may be (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable), and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on determined with respect to the Redemption Notice Dateof Redemption, as applicablethe case may be. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that If a conversion of Called Notes during a Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the any such Notes to be converted will shall be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Notice of Redemption or the Make-Whole Fundamental Change, as applicable, and the later event will shall be deemed not to have occurred for purposes of such conversion for purposes of this Section 14.03.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 2025 1.6684 1.3993 1.1507 0.9024 0.6400 0.4758 0.3033 0.1304 0.0614 0.0297 0.0055 0.0000 August 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 15October 1, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 1.6684 1.3993 1.1411 0.8789 0.6063 0.4394 0.2688 0.1067 0.0466 0.0208 0.0027 0.0000 August 15October 1, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 1.6684 1.3783 1.0963 0.8216 0.5429 0.3780 0.2168 0.0760 0.0297 0.0117 0.0004 0.0000 August 15October 1, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 1.6684 1.3236 1.0187 0.7285 0.4464 0.2895 0.1485 0.0426 0.0141 0.0045 0.0000 August 150.0000 October 1, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 1.6684 1.2259 0.8800 0.5660 0.2903 0.1593 0.0639 0.0131 0.0036 0.0007 0.0000 0.0000 October 1, 2030 1.6684 1.1162 0.5805 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices Price and Effective Dates or Redemption Notice Dates Date may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 365-day year, as applicable;
(ii) if the Stock Price is greater than $42.50 1,000.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) aboveof this Section 14.03), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 147.01 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) aboveof this Section 14.03), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 6.8022 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with With Make-Whole Fundamental Changes or during a Redemption PeriodChanges.
(aA) If (i) Notwithstanding anything herein to the Effective Date of contrary, the Conversion Rate applicable to each Security that is surrendered for conversion, in accordance with this Article X, at any time on or before the 30th day after the date we announce a Make-Whole Fundamental Change occurs prior has occurred (which the Company shall disclose in the written notice, public announcement and publication referred to in Section 10.14(E)) shall be increased to an amount equal to the Maturity Date and a Holder elects Conversion Rate that would, but for this Section 10.14, otherwise apply to convert its Notes in connection with such Security pursuant to this Article X, plus an amount equal to the Make-Whole Conversion Rate Adjustment; provided, however, that such increase to the Conversion Rate shall not apply if either:
(i) such Make-Whole Fundamental Change or constitutes a Public Acquirer Fundamental Change with respect to which the Company shall have duly made, and given full effect to, an election, pursuant to and in accordance with Section 10.14(F), to make an Acquirer Stock Conversion Right Adjustment; or
(ii) the Company issues a Notice of Redemption as provided under Section 16.02, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Period, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if is announced by the relevant Company but shall not be consummated. The additional consideration payable hereunder on account of any Make-Whole Conversion Date occurs during Rate Adjustment with respect to a Security surrendered for conversion is herein referred to as the period from"Make-Whole Consideration." For the avoidance of doubt, and including, a Make-Whole Conversion Rate Adjustment or payment of Make-Whole Consideration provided for in this Section 10.14 shall be made only with respect to the Effective Date of Securities being converted in connection with the applicable Make-Whole Fundamental Change up toand shall not be effective as to any Securities not so converted.
(B) As used herein, and including"Make-Whole Conversion Rate Adjustment" shall mean, the close of business on the Business Day immediately prior with respect to the related each Make-Whole Fundamental Change Repurchase Date and each applicable Security, an amount equal to a fraction whose numerator is the product of the Applicable Increase and the principal amount of such Security to be converted and whose denominator is one thousand dollars (or$1,000). As used herein, in the case of "Applicable Increase" shall mean, with respect to a Make-Whole Fundamental Change that would have been a Change, the amount, set forth in the following table, which corresponds to the effective date of such Make-Whole Fundamental Change but for (the proviso in clause (b"Effective Date") of and the definition thereof, the 35th Trading Day immediately following the Effective Date Applicable Price of such Make-Whole Fundamental Change) : Applicable Increase (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d).
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or of Notes called for redemption with a Conversion Date occurring during the related Redemption Period, the Company shall, at its option, satisfy the related Conversion Obligation in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares)Securities) Effective date Applicable March March March March March March March March price 10, multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on the Redemption Notice Date, as applicable. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 August 2005 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 2006 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 2007 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 2008 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 2009 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices and Effective Dates or Redemption Notice Dates may not be set forth in the table above2010 15, in which case2011 15, 2012 $13.09..... 20.40 20.62 19.81 18.98 18.22 18.17 18.37 0.00 $15.00..... 15.85 15.83 14.84 13.70 12.36 11.40 11.18 0.00 $17.50..... 11.80 11.64 10.56 9.25 7.53 5.36 5.12 0.00 $20.00..... 9.08 8.86 7.80 6.48 4.70 1.27 1.24 0.00 $22.50..... 7.18 6.94 5.94 4.71 3.03 0.00 0.00 0.00 $25.00..... 5.79 5.57 4.66 3.54 2.06 0.00 0.00 0.00 $27.50..... 4.76 4.57 3.75 2.75 1.48 0.00 0.00 0.00 $30.00..... 3.97 3.81 3.08 2.20 1.13 0.00 0.00 0.00 $32.50..... 3.35 3.22 2.57 1.81 0.92 0.00 0.00 0.00 $35.00..... 2.86 2.76 2.19 1.52 0.78 0.00 0.00 0.00 $37.50..... 2.47 2.39 1.88 1.31 0.68 0.00 0.00 0.00 $40.00..... 2.14 2.09 1.64 1.14 0.61 0.00 0.00 0.00 $42.50..... 1.87 1.84 1.44 1.01 0.56 0.00 0.00 0.00 $45.00..... 1.64 1.63 1.28 0.90 0.51 0.00 0.00 0.00 $47.50..... 1.44 1.46 1.14 0.81 0.47 0.00 0.00 0.00 $50.00..... 1.28 1.31 1.03 0.73 0.44 0.00 0.00 0.00 $52.50..... 1.13 1.17 0.93 0.67 0.41 0.00 0.00 0.00 $55.00..... 1.01 1.06 0.84 0.61 0.39 0.00 0.00 0.00 provided, however, that:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 day year, as applicable;
(ii) if the Stock Price is greater than $42.50 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Sources: Indenture (Playboy Enterprises Inc)
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption Period.
(a) If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change Change, or (ii) the Company issues a Notice of Redemption as provided set forth under Section 16.02, Article 3 and a Holder elects to convert such its Notes with a Conversion Date called for Redemption, if any, during the related Redemption Period, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer less than all of the outstanding Notes pursuant to Article 16Notes, then Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes as described in this Section on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d)Redemption.
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or of Notes called for redemption with during a Conversion Date occurring during the related Redemption Period, the Company shall, at its option, shall satisfy the related Conversion Obligation by delivering shares of Common Stock, including Additional Shares, in accordance with Section 14.0211.02 but subject to the provisions under Section 11.03; provided, however, that if, at if the effective time consideration received by holders of a the Common Stock in exchange for such Common Stock in any Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the HoldersTrustee, the Trustee and the Conversion Agent (if other than the Trustee) and Holders (a “Make-Whole Fundamental Change Company Notice”), in accordance with Section 17.04, of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c) The number of Additional Sharesamount, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table belowin Section 11.05(e), based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, applicable and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on the Redemption Notice Date, as applicable. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable relevant Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed seemed not to have occurred for purposes of this Section 14.0311.05. The Company shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or expiration date of the event occurs during such five consecutive Trading Day period.
(d) The Stock Prices set forth in the column headings of the table below in Section 11.05(e) shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares amounts by which the Conversion Rate shall be increased as set forth in the table below in Section 11.05(e) shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.0411.06.
(e) The following table sets forth the number of Additional Shares amounts, if any, by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 11.05 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, Date set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 7/25/2019 151.5151 151.5151 151.5151 140.8242 137.4261 90.7012 68.0259 54.4207 38.8719 27.2104 18.1402 13.6052 1/15/2020 151.5151 151.5151 151.5151 136.4909 126.1966 83.2898 62.4673 49.9739 35.6956 24.9869 16.6580 12.4935 1/15/2021 151.5151 151.5151 151.5151 125.7575 101.8981 67.2528 50.4396 40.3517 28.8226 20.1758 13.4506 10.0879 1/15/2022 151.5151 151.5151 146.9697 110.9575 77.1215 50.9002 38.1751 30.5401 21.8144 15.2701 10.1800 7.6350 1/15/2023 151.5151 151.5151 126.0606 90.2909 51.8508 34.2215 25.6661 20.5329 14.6664 10.2664 6.8443 5.1332 1/15/2024 151.5151 131.5909 94.0152 59.0242 26.1361 17.2499 12.9374 10.3499 7.3928 5.1750 3.4500 2.5875 1/15/2025 151.5151 75.7575 0.0000 August 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices Price and Effective Dates Date or Redemption Notice Dates Date may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicablethe case may be, is between two Effective Dates or Redemption Notice Dates, as applicable, in the tabletable above, the number of Additional Shares amount by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number amount of Additional Shares the Conversion Rate increase set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 365-day year, as applicable;
(ii) if the Stock Price is greater than $42.50 20.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion RateRate will not be increased; and
(iii) if the Stock Price is less than $9.65 1.10 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion RateRate will not be increased. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 909.0909 shares of Common StockStock in the event of a Make-Whole Fundamental Change or Notice of Redemption, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.0411.06.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with MakeCERTAIN SECURITIES SURRENDERED IN CONNECTION WITH MAKE-Whole Fundamental Changes or during a Redemption PeriodWHOLE FUNDAMENTAL CHANGES OR NOTICE OF REDEMPTION.
(aA) If a Holder converts (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption as provided under Section 16.02, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Period, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period at any time from, and including, the Make-Whole Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to preceding the related Fundamental Change Repurchase Purchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b2) of the definition thereof, the 35th Trading Day immediately following the Make-Whole Effective Date of such Make-Whole Fundamental Change) Change (such period, the “Make-Whole Fundamental Change Conversion Period”). For the avoidance of doubt) or (ii) at any time from, and including, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If date the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of gives the Notice of Redemption to, and will not be entitled to an increased including, the Business Day immediately preceding the Redemption Date (such period, the “Redemption Conversion Period”), the applicable Conversion Rate for conversions will be increased by an additional number of Common Shares and such Notes conversion will be deemed to be “in connection with” such Make-Whole Fundamental Change or Notice of Redemption, as the case may be; provided, however, that such increase to the Conversion Rate shall not apply if such Make-Whole Fundamental Change is announced by the Company but not consummated. The additional consideration deliverable or payable hereunder on account of any Make-Whole Applicable Increase with respect to a Security surrendered for conversion is herein referred to as the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d)“Make-Whole Consideration.”
(bB) Upon surrender of Notes for conversion in connection As used herein, “Make-Whole Applicable Increase” shall mean, with respect to a Make-Whole Fundamental Change or Notice of Notes called for redemption with a Conversion Date occurring during the related Redemption PeriodRedemption, the Company shallnumber of shares set forth in the following table, at its option, satisfy which corresponds to the related Conversion Obligation in accordance with Section 14.02; provided, however, that if, at the effective time of a “Make-Whole Fundamental Change described in clause (b) Effective Date” and the Applicable Price of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely or Notice of cash, for any conversion Redemption: Number of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash additional shares (per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the TrusteeSecurities) of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on the Redemption Notice Date, as applicable. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/Redemption Notice Date 5.07 $9.65 6.00 $9.85 6.59 $10.25 7.50 $10.75 8.57 $11.50 10.00 $12.50 $14.00 $16.00 15.00 $20.00 $25.00 30.00 $32.50 $42.50 August 1440.00 June 10, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 45.5167 36.3549 35.8118 27.6949 24.1975 16.2449 13.0149 10.8882 6.9349 3.1649 0.0000 August 15June 30, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 45.5167 35.3382 34.5978 25.4949 22.1898 13.9149 11.3189 9.2749 5.8199 2.5749 0.0000 August 15June 30, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 45.5167 31.9716 30.1972 22.4282 19.4350 10.8849 8.7629 7.3082 4.5299 1.9282 0.0000 August 15June 30, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 45.5167 26.7216 25.0379 17.9749 15.4429 6.8449 6.3829 4.9482 3.0849 1.2449 0.0000 August 15June 30, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 45.5167 21.2549 20.0303 11.0549 9.4082 5.3549 2.9909 2.0682 1.6149 0.5416 0.0000 August 15June 30, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 45.5167 14.9447 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices and Effective Dates or Redemption Notice Dates may not be set forth in the table above0.0000 0.0000 provided, in which casehowever, that:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 day year, as applicable;
(ii) if the Stock Price is greater than $42.50 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Sources: Indenture (Fortuna Silver Mines Inc)
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption PeriodNotices of Redemption.
(a) If (ix) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and or (y) the Company gives a Notice of Redemption with respect to any or all of the Notes in accordance with Section 16.02 and, in each case, a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption Redemption, as provided under Section 16.02, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Periodapplicable, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d).59
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii) or Notice of Notes called for redemption with a Conversion Date occurring during the related Redemption Periodpursuant to Section 14.01(b)(v), the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the adjustment for Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the HoldersHolders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change in writing and issue a press release announcing such Effective Date no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective effective, or the date of the relevant Notice of Redemption, as the case may be (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable), and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on with respect to the Redemption Notice DateOptional Redemption, as applicablethe case may be (the “Stock Price”). If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive five Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption date of the Notice Dateof Redemption, as the case may be. In The Board of Directors shall make appropriate adjustments to the event that a conversion during a Redemption Period would also be deemed Stock Price, in its good faith determination, to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase account for any adjustment to the Conversion Rate with respect that becomes effective, or any event requiring an adjustment to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.03.Conversion Rate where 60
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
. (e) The following table sets forth the number of Additional Shares of Common Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Stock Price Effective Date/Redemption Notice $26.58 $30.00 $33.23 $35.00 $40.00 $43.19 $50.00 $75.00 $100.00 $125.00 $150.00 $200.00 $250.00 $350.00 Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 14May 22, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 August 7.5244 6.9340 5.9828 5.5560 4.6055 4.1431 3.3978 1.9924 1.3564 0.9866 0.7423 0.4369 0.2525 0.0404 2020 May 15, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 7.5244 6.6180 5.6398 5.2066 4.2573 3.8039 3.0874 1.7863 1.2154 0.8863 0.6693 0.3981 0.2344 0.0404 2021 May 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 7.5244 6.2543 5.2398 4.7980 3.8495 3.4082 2.7280 1.5528 1.0567 0.7726 0.5855 0.3517 0.2106 0.0404 2022 May 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 7.5244 5.8483 4.7812 4.3263 3.3765 2.9498 2.3160 1.2935 0.8815 0.6467 0.4919 0.2981 0.1812 0.0404 2023 May 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 7.5244 5.3917 4.2435 3.7686 2.8163 2.4107 1.8410 1.0085 0.6903 0.5085 0.3881 0.2374 0.1464 0.0404 2024 May 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 7.5244 4.8483 3.5703 3.0660 2.1208 1.7546 1.2872 0.6977 0.4812 0.3558 0.2725 0.1680 0.1050 0.0328 2025 May 15, 7.5244 4.1377 2.6115 2.0677 1.2010 0.9338 0.6540 0.3627 0.2524 0.1873 0.1438 0.0894 0.0566 0.0190 2026 May 15, 7.5244 3.2357 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 2027 The exact Stock Prices Price and Effective Dates or Redemption Notice Dates Date may not be set forth in the table above, in which case:
: (i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or Redemption Notice Date, as applicable, is between two Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 day year, as applicable;
(ii) if the Stock Price is greater than $42.50 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.61
Appears in 1 contract
Sources: Indenture (Tricida, Inc.)
Increased Conversion Rate Applicable to. Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption PeriodRedemption.
(a) If (ix) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Redemption Notice of Redemption as provided under pursuant to Section 16.02, 16.02 and a Holder elects to convert its Notes in connection with such Notes with a Conversion Date during the related Redemption PeriodOptional Redemption, the Company shall, in each case, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion Date occurs during is received by the period Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the close of business on the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company A conversion shall not increase the Conversion Rate be deemed for these purposes to be “in connection with” such Optional Redemption if such Notes are convertible (or deemed convertible) pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate 14.01(b)(v) and such Notes are converted during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d)Period.
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii) or of Notes called for redemption in connection with a Conversion Date occurring during the related an Optional Redemption Periodpursuant to Section 14.01(b)(v), the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 14.0214.02 based on the Conversion Rate as increased to reflect the Additional Shares pursuant to the table below; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the adjustment for Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify notify, in writing, the HoldersHolders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a during the Make-Whole Fundamental Change Period or a Notice of during the Redemption Period shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicablethe case may be, and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on the Redemption Notice Date, as applicable, as set forth in this Section 14.03 (the “Stock Price”). If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. OtherwiseIn the case of any other Make-Whole Fundamental Change or in the case of any Optional Redemption, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date (as such term is defined for purposes of Section 14.04) or expiration date of the event occurs, during such five consecutive Trading Day period. In the event that a conversion during a in connection with an Optional Redemption Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the any such Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of (i) the applicable Redemption Notice Date or and (ii) the Effective Date of the applicable Make-Whole Fundamental ChangeDate, and the later event will shall be deemed not to have occurred for purposes of this Section 14.03.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares of Common Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date or Redemption Notice Date, as applicable, set forth below: Effective Date/date/ Redemption Notice Date notice date $9.65 34.15 $9.85 38.00 $10.25 42.00 $10.75 47.81 $11.50 55.00 $12.50 62.15 $14.00 70.00 $16.00 80.00 $20.00 90.00 $25.00 100.00 $32.50 120.00 $42.50 August 14140.00 $170.00 $200.00 March 9, 2020 8.3664 6.8474 5.6479 4.3708 3.2845 2.5413 1.9660 1.4593 1.1089 0.8559 0.5193 0.3066 0.1006 0.0000 March 1, 2021 8.3664 6.7195 5.4617 4.1403 3.0389 2.3033 1.7481 1.2734 0.9552 0.7320 0.4452 0.2705 0.1006 0.0000 March 1, 2022 8.3664 6.4997 5.1690 3.7971 2.6858 1.9694 1.4491 1.0235 0.7516 0.5685 0.3443 0.2141 0.0948 0.0000 March 1, 2023 8.3664 6.1866 4.7460 3.3016 2.1862 1.5105 1.0524 0.7060 0.5020 0.3737 0.2265 0.1451 0.0717 0.0000 March 1, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 8.3664 5.7261 4.0743 2.5028 1.4144 0.8500 0.5280 0.3261 0.2259 0.1693 0.1079 0.0734 0.0403 0.0000 August 15March 1, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 8.3664 5.3997 2.8933 0.0000 August 15, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 15, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact Stock Prices and Effective Dates or Redemption Notice Dates Dates, may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date or the Redemption Notice Date, as applicablethe case may be, is between two Effective Dates or Redemption Notice Dates, as applicable, in the tabletable above, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates or Redemption Notice Dates, as applicable, based on a 365- or 366 365-day year, as applicable;
(ii) if the Stock Price is greater than $42.50 200.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 34.15 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 103.6269 29.2825 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change. For the avoidance of doubt, if a Holder converts its Notes prior to the Effective Date of a Make-Whole Fundamental Change, then whether or not such Make-Whole Fundamental Change occurs, the Holder shall not be entitled to an increased Conversion Rate.
Appears in 1 contract
Increased Conversion Rate Applicable to. Certain Notes Surrendered for Conversion in Connection with Make-Whole Fundamental Changes or during a Redemption Period.Changes.
(a) If a Fundamental Change (idetermined after giving effect to the paragraph immediately following clause (e) of the Effective Date definition thereof, but without regard to the exclusion in clause (b)(ii) of the definition thereof) occurs (a “Make-Whole Fundamental Change occurs prior to the Maturity Date Change”), and a Holder elects to convert converts its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption as provided under Section 16.02, and a Holder elects to convert such Notes with a Conversion Date during the related Redemption PeriodChange, the Company shallwill, in each case, under the circumstances described belowin this Section 9.03, increase the Conversion Rate for such Notes by the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”)) set forth in this Section 9.03. For purposes of this Section 9.03, as described below. A a conversion of Notes shall will be deemed for these purposes to be “in connection with” such a Make-Whole Fundamental Change if the relevant applicable Conversion Date occurs during the period from, and including, the Effective Date effective date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso exclusion in clause (bb)(ii) of the definition thereof, the 35th Trading Day immediately following the Effective Date effective date of such Make-Make- Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account of an anticipated Fundamental Change that does not occur. If the Company issues a Notice of Redemption as set forth under Section 16.02 the Company shall increase the Conversion Rate during the related Redemption Period only with respect to conversions of Notes called for redemption (or deemed called for redemption as contemplated by the penultimate sentence of Section 16.02(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes not called for redemption will not be entitled to convert such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited circumstances set forth in the penultimate sentence of Section 16.02(d).
(b) Upon surrender of Notes for conversion If a Holder converts a Note in connection with a Make-Whole Fundamental Change or of Notes called for redemption with a Conversion Date occurring during the related Redemption PeriodChange, the Company shall, at its option, satisfy the related will settle such conversion by delivering Conversion Obligation Consideration in accordance with Section 14.029.02; provided, however, that ifnotwithstanding anything to the contrary in Section 9.02 hereof, at the effective time of if a Holder converts a Note in connection with a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental ChangeChange in which the holders of the Common Stock receive only cash in consideration for their shares of Common Stock, the Reference Property Company will settle such conversion by delivering to such Holder, on the second Business Day immediately following the Conversion Date for such Make-Whole Fundamental Change is composed entirely Note, an amount of cash, for any conversion of Notes following the Effective Date each $1,000 principal amount of such Note converted, equal to the product of (i) the Conversion Rate on the Conversion Date applicable to such Note (including any Additional Shares added to such Conversion Rate pursuant to this Section 9.03) and (ii) the Stock Price for such Make- Whole Fundamental Change. No later than one Business Day immediately after the effective date of a Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall will notify the HoldersHolders of such effective date, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with Section 10.02 of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after Base Indenture, and issue a press release announcing such Effective Dateeffective date.
(c) The number of Additional Shares, if any, Shares by which the Conversion Rate shall will be increased for conversions if a Holder converts a Note in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall will be determined by reference to the table below, and will be based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective Date”) or the Redemption Notice Date, as applicable, Date and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Make- Whole Fundamental Change or on the Redemption Notice Date, as applicableChange. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a For any Make-Whole Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable “Make-Whole Fundamental Change, and Change Effective Date” will mean the later event will be deemed not to have occurred for purposes of this Section 14.03date on which such Make-Whole Fundamental Change occurs or becomes effective.
(d) The Stock Prices set forth in the first row (i.e., the column headings headers) of the table below shall will be adjusted as of any on each date on which the Conversion Rate of the Notes is otherwise adjustedmust be adjusted pursuant to Section 9.04. The adjusted Stock Prices shall will equal the Stock Prices applicable in effect immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate in effect immediately prior to such the adjustment giving rise to the Stock Price adjustment share price adjustment, and (ii) the denominator of which is the Conversion Rate as so adjustedin effect immediately after the adjustment. The number numbers of Additional Shares set forth in the table below shall will be adjusted in the same manner and manner, at the same time as and for the same events for which the Conversion Rate as set forth in is adjusted pursuant to Section 14.049.04.
(e) The following table sets forth hypothetical Make-Whole Fundamental Change Effective Dates, Stock Prices and the number of Additional Shares by which the Conversion Rate shall will be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each a Holder that converts a Note in connection with a Make-Whole Fundamental Change having such Make-Whole Fundamental Change Effective Date and Stock Price: Stock Price and Effective Date or Redemption Notice DateApril 23, as applicable2018 ...... 14.5243 12.8381 11.2383 10.1220 9.4580 7.3704 6.0703 4.4450 3.4578 0.7605 May 1, set forth below: Effective Date/Redemption Notice Date $9.65 $9.85 $10.25 $10.75 $11.50 $12.50 $14.00 $16.00 $20.00 $25.00 $32.50 $42.50 August 142019 ......... 14.5243 11.3494 9.6537 8.5462 7.9220 6.1012 5.0177 3.6705 2.8540 0.6313 May 1, 2024 19.0335 18.0975 16.3922 14.5302 12.1991 9.7616 7.1193 4.8038 2.3100 0.9280 0.1609 0.0000 August 152020 ......... 14.5243 10.0044 8.0640 6.8996 6.2970 4.7528 3.9037 2.8528 2.2172 0.4942 May 1, 2025 19.0335 18.0975 16.3922 14.5302 12.1183 9.5400 6.8050 4.4819 2.0950 0.8352 0.1357 0.0000 August 152021 ......... 14.5243 9.8726 6.4754 5.1347 4.5260 3.2940 2.7033 1.9738 1.5330 0.3442 May 1, 2026 19.0335 18.0975 16.2078 14.0502 11.4070 8.7368 5.9964 3.7850 1.6770 0.6492 0.1000 0.0000 August 152022 ......... 14.5243 9.7364 4.9651 3.1722 2.5210 1.7112 1.4053 1.0248 0.7956 0.1799 May 1, 2027 19.0335 17.5919 15.3698 13.0056 10.1687 7.4032 4.7329 2.7700 1.1380 0.4276 0.0495 0.0000 August 15, 2028 19.0335 16.6701 14.0205 11.2530 8.0591 5.1848 2.7900 1.4006 0.5460 0.2176 0.0206 0.0000 August 15, 2029 19.0335 16.4985 12.4878 7.8865 1.7226 2023 ......... 14.5243 9.6843 4.3271 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact 0.0000
(f) If the Stock Prices and Price and/or Make-Whole Fundamental Change Effective Dates or Redemption Notice Dates may Date for a Make- Whole Fundamental Change are not be set forth in the table above, in which casethen:
(i) if the Stock Price is between two Stock Prices in the table above or the Make-Whole Fundamental Change Effective Date or Redemption Notice Date, as applicable, is between two Make-Whole Fundamental Change Effective Dates or Redemption Notice Dates, as applicable, in the table, the number of Additional Shares by which the Conversion Rate shall will be increased shall for a Holder that converts a Note in connection with such Make-Whole Fundamental Change will be determined by a straight-line interpolation between the number numbers of Additional Shares set forth for the higher and lower Stock Prices listed in the table and the earlier and later Make-Whole Fundamental Change Effective Dates or Redemption Notice Dateslisted in the table, as applicable, based on a 365- or 366 366-day year, as applicable;
(ii) if the Stock Price is greater than $42.50 per share (150.00, subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above)table, no Additional Shares shall will be added to the Conversion Rate; and
(iii) if the Stock Price is less than $9.65 14.85 per share (share, subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above)table, no Additional Shares shall will be added to the Conversion Rate. Notwithstanding the foregoing, in no event shall will the Conversion Rate be increased as a result of this Section 9.03 to exceed 67.3400 shares of Common Stock per $1,000 principal amount of Notes exceed 103.6269 shares of Common StockNotes, subject to adjustment in the same manner as manner, at the same time and for the same events for which the Conversion Rate pursuant to must be adjusted as set forth in Section 14.049.04.
(fg) Nothing in this Section 14.03 9.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 9.04 in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Sources: Second Supplemental Indenture