Settlement Upon Conversion; Conversion Procedures. (a) Upon conversion of a Note, the Company shall, subject to this Section 4.02, Section 4.04(b) and Section 4.07, pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of such Note being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (i) of this Section 4.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock (“Combination Settlement”), at its election, as set forth in this Section 4.02. (i) All conversions occurring on or after September 15, 2020 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to Notes and prior to the Redemption Date, shall be settled using the same Settlement Method. Except for any conversions described in the preceding sentence, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. If the Company elects a Settlement Method, the Company shall notify the converting Holders, through the Trustee and the Conversion Agent (if other than the Trustee) in writing, of the Settlement Method it has selected no later than the close of business on the Trading Day immediately following the related Conversion Date (or in the case of any conversions (A) for which the relevant Conversion Date occurs after the date of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice, or (B) occurring on or after September 15, 2020 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Business Day immediately preceding September 15, 2020) (in either case, the “Settlement Method Election Date”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence the Company shall no longer have the right to elect Cash Settlement or Physical Settlement, and shall be deemed to have elected Combination Settlement in respect of the Conversion Obligation pursuant to Section 4.02(a), and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company elects Combination Settlement but does not notify converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing prior to the deadline set forth in this Section 4.02(a)(i) of the Specified Dollar Amount per $1,000, such Specified Dollar Amount shall be deemed to be $1,000. (ii) Settlement amounts upon a conversion of Notes shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate, subject to Section 4.02(i); (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 60 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a settlement amount equal to the sum of the Daily Settlement Amounts for each of the 60 consecutive Trading Days during the related Observation Period, subject to Section 4.02(i). (iii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock. (b) Subject to Section 4.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Certificated Note (A) complete and manually sign an irrevocable notice to the Conversion Agent as set forth in the Form of Conversion Notice attached to the Form of Note set forth in Exhibit A hereto (a “Conversion Notice”) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered and deliver such Conversion Notice to the Conversion Agent, (B) deliver such Conversion Notice and Note, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), to the Conversion Agent and (C) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in subsection (g) of this Section 4.02 and (ii) in the case of a Global Note, comply with the Applicable Procedures for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in subsection (g) of this Section 4.02. The Conversion Agent shall notify the Company of any conversion pursuant to this Article 4 on the Conversion Date for such conversion. No Conversion Notice with respect to any Notes may be surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a Repurchase Notice to the Company in respect of such Notes and not validly withdrawn such Repurchase Notice in accordance with Section 3.02(c). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If the Company elects Physical Settlement with respect to any conversion of Notes, the Company shall deliver the consideration due in respect of conversion on the third Business Day immediately following the relevant Conversion Date. If the Company elects (or is deemed to have elected) Cash Settlement or Combination Settlement with respect to any conversion of Notes, except as set forth in Section 4.04(b) and Section 4.07(a), the Company shall deliver the consideration due in respect of conversion on the third Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any shares of Common Stock upon conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company or its stock transfer agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Company or its representative receives a sum sufficient to pay any tax that is due by such ▇▇▇▇▇▇ in accordance with the immediately preceding sentence. (f) Upon the conversion of an interest in a Global Note, the Trustee, or the Notes Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. On the Conversion Date, the Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (g) Except as described below, the Company shall not make any separate cash payment for accrued and unpaid interest, if any, upon conversion of Notes. Upon conversion of a Note, the Company’s settlement of the Conversion Obligation in respect of such conversion shall be deemed to satisfy in full its obligation to pay the principal amount of such Note and accrued and unpaid interest, if any, attributable to the period from, and including, March 16, 2016 or the most recent date to which interest has been paid or provided for to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon conversion of a Note into a combination of cash and shares of Common Stock, accrued and unpaid interest shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if a Note is submitted for conversion after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall receive the full amount of interest payable on such Note on the corresponding Interest Payment Date notwithstanding the conversion. A Note surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the principal amount of the Note so converted; provided that no such payment need be made: (i) for conversions following the Regular Record Date immediately preceding the Maturity Date; (ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (iv) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note. (h) Each conversion shall be deemed to have been effected as to any Note surrendered for conversion on the Conversion Date; provided that the Person in whose name the certificate for any shares of Common Stock issuable upon conversion is registered shall be treated as the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects, or is deemed to have elected, to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon the conversion of a Note, the Person who surrendered such Note for conversion shall no longer be a Holder of such Note surrendered for conversion; provided that (x) if such Note was converted after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Note on the related Interest Payment Date in accordance with Section 4.02(g) and (y) the converting Holder shall have the right to receive the consideration due upon conversion of such Note in accordance with this Section 4.02. (i) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock that would otherwise be issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Nuvasive Inc)

Settlement Upon Conversion; Conversion Procedures. (a) ~~Upon~~ Subject to this ‎Section 14.02, ‎Section 14.03(b) and ‎Section 14.07(a), upon conversion of a any Note, the Company ~~shall, subject to this Section 4.02, Section 4.04(b) and Section 4.07, pay~~ shall satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of ~~such Note~~ Notes being converted, cash (“Cash Settlement”), ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADS in accordance with subsection (ij) of this ~~Section 4.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares~~ ADSs, together with cash, if applicable, in lieu of ~~Common Stock~~ delivering any fractional ADS in accordance with subsection (j) of this ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 4.02~~‎Section 14.02. (i) All ~~conversions occurring on or after September 15, 2020 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, and all~~ conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the fifth Business Day prior to, the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the 96th Scheduled Trading Day before the Maturity Date shall be settled using the same Settlement Method. . (ii) Except for any conversions ~~described in~~ for which the ~~preceding sentence~~relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Business Day prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after the 96th Scheduled Trading Day before the Maturity Date, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion Dates~~. If~~ . (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects a Settlement Method, the Company shall ~~notify~~ deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, ~~through~~ the Trustee and the Conversion Agent ~~(if other than the Trustee) in writing, of the Settlement Method it has selected~~ no later than the close of business on the Trading Day immediately following the ~~related~~ relevant Conversion Date (or or, in the case of any conversions ~~(A)~~ for which the relevant Conversion Date occurs ~~after~~ (A) during the ~~date of a~~ Redemption ~~Notice and prior to the related Redemption Date~~Period, in such Redemption ~~Notice,~~ Notice or (B) ~~occurring~~ on or after ~~September 15, 2020 to~~ the ~~close of business on the second~~ 96th Scheduled Trading Day ~~immediately preceding~~ before the Maturity Date, no later than the ~~close of business on~~ 96th Scheduled Trading Day before the ~~Business Day immediately preceding September 15, 2020) (in either case, the “Settlement Method Election~~ Maturity Date”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence~~ sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Physical Settlement,~~ Combination Settlement for such conversion or during such period and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation (such settlement method shall be the “Default Settlement Method” initially elected by the Company). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of ~~the~~ its Conversion Obligation ~~pursuant to Section 4.02(a)~~but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in such Settlement Notice, ~~and~~ the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be ~~equal~~ deemed to $be US$1,000. (iv) By written notice to the Holders, the Trustee and the Conversion Agent, the Company may, prior to the 96th Scheduled Trading Day before the Maturity Date, at its option, change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect or irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per US$1,000 principal amount of Notes of US$1,000 or with an ability to continue to set the Specified Dollar Amount per US$1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default Settlement Method or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement ~~but~~ with an ability to continue to set the Specified Dollar Amount per US$1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes through the Trustee, the Conversion Agent in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify ~~converting~~ Holders, the Trustee, and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount will be US$1,000 per US$1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to ‎Section 10.01. However, the Company may nonetheless choose to execute such an amendment at its option. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent ~~(if other than~~ of an election to change the ~~Trustee)~~ Default Settlement Method or irrevocably fixes the Settlement Method, the Company shall either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in ~~writing prior~~ a current report on Form 6-K or press release announcing that the Company has elected to change the ~~deadline set forth in this Section 4.02(a)(i) of~~ Default Settlement Method or irrevocably fix the ~~Specified Dollar Amount per $1,000~~Settlement Method, ~~such Specified Dollar Amount shall be deemed to be $1,000.~~as the case may be. (iiv) ~~Settlement amounts upon~~ The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion ~~Rate, subject to Section 4.02(i)~~Rate in effect immediately after the close of business on the relevant Conversion Date; (B) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 60 90 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted, a ~~settlement amount~~ Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 60 90 consecutive Trading Days during the related Observation Period~~, subject to Section 4.02(i)~~. (~~iii~~vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share~~ADS, the Company shall notify the Trustee and the Conversion Agent ~~(if other than the Trustee)~~ in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~shares~~ ADS. The Trustee and the Conversion Agent shall have no responsibility for any such determination. (vii) The Holders may elect to receive Class A Ordinary Shares in lieu of ~~Common Stock~~any ADSs deliverable upon conversion by specifying in the relevant Notice of Conversion such election. If a Holder elects to receive Class A Ordinary Shares in lieu of any ADSs deliverable upon conversion, the Company shall register in the Hong Kong Share Register the Person or Persons designated in the Notice of Conversion as holder of such number of Class A Ordinary Shares equal to (i) the number of ADSs deliverable upon conversion as described above under the “Settlement Amounts” (without taking into account any fractional ADS) multiplied by (ii) the number of Class A Ordinary Shares then represented by one ADS as of the Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). The Company shall make a share certificate or certificates representing such number of Class A Ordinary Shares available for collection at the office of the Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ordinary mail, at the expense, of the Person to whom such certificate or certificates are sent) such certificate or certificates to the Person and at the place specified in the Notice of Conversion. Any Holder that wishes to deposit its Class A Ordinary Shares into CCASS for trading on the Hong Kong Stock Exchange is required to have a broker account in Hong Kong or otherwise have a CCASS participant account and make necessary arrangements with such ▇▇▇▇▇▇’s broker (or arrange personally if such Holder has a CCASS participant account) for the transfer of the Class A Ordinary Shares to HKSCC for depositing into the relevant CCASS participant’s stock account. The parties hereto acknowledge and understand that the Hong Kong Share Registrar will not accept any transfer of such Class A Ordinary Shares to the HKSCC for depositing into the relevant CCASS participant’s stock account prior to the Resale Restriction Termination Date, and therefore, a Holder will not be able to trade such Class A Ordinary Shares on the Hong Kong Stock Exchange prior to the Resale Restriction Termination Date. (viii) Any Class A Ordinary Shares deliverable in lieu of any ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in ‎‎Section 2.05(d) and will not be able to be deposited into CCASS until such restrictions are removed. After removal of such restrictions on transfer and resale, any Class A Ordinary Shares deliverable upon conversion of the Notes, if any, will be fully fungible with the Class A Ordinary Shares listed on the Hong Kong Stock Exchange. The Company further covenants that it will obtain approval to list, subject to official notice of issuance upon conversion of the Notes, such Class A Ordinary Shares on the Hong Kong Stock Exchange and register in the Hong Kong Share Register in the Person or Persons designated in the Notice of Conversion as the holder of the Class A Ordinary Shares in order to facilitate their listing and trading on the Hong Kong Stock Exchange. (b) Subject to ~~Section 4.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Certificated Note (A) complete and manually sign an irrevocable notice to the Conversion Agent as set forth in the Form of Conversion Notice attached to the Form of Note set forth in Exhibit A hereto (a “Conversion Notice”) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered and deliver such Conversion Notice to the Conversion Agent, (B) deliver such Conversion Notice and Note, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), to the Conversion Agent and (C) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in subsection (g) of this Section 4.02 and (ii) in the case of a Global Note, comply with the ~~Applicable Procedures~~ applicable procedures of the Depositary in effect at that time and the procedures agreed by the Company and the ADS Depositary with respect to any ADSs issued upon conversion of the Notes (including submission of a Notice of Conversion to the Company and the ADS Depositary for ~~converting a beneficial interest in a Global Note~~ any conversion prior to the Resale Restriction Termination Date), if applicable, and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~subsection~~ ‎Section 14.02(h), and/or all transfer or similar taxes as described herein and (gii) in the case of ~~this Section 4.02~~a Certificated Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent, the Company and the ADS Depositary as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the specified office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted, including, if applicable, the Holder’s election to receive Class A Ordinary Shares in lieu of any ADS deliverable upon conversion, and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs or Class A Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the Conversion Agent (3) if required, furnish appropriate endorsements and transfer documents (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ‎‎Section 14.02(h); and (5) if required, pay any transfer or similar taxes as set forth herein. The Conversion Agent shall notify the Company of any conversion pursuant to this ~~Article 4~~ ‎Article 14 on the Conversion Date for such conversion. No Notice of Conversion ~~Notice~~ with respect to any Notes may be delivered and no Notes may be surrendered by a Holder for conversion thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with ~~Section 3.02(c)~~‎Section 15.03. A Notice of Conversion shall be deposited at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 5:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Certificated Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 5:00 p.m. on the next Business Day. In connection with the conversion of the Notes, the converting Holder is deemed to acknowledge, represent to and agree with the Company and the ADS Depositary that such Holder is not an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company and has not been an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company during the three months immediately preceding the Conversion Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~hereby~~thereby) so surrendered. None of the Trustee nor the Agents shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. ~~If the Company elects Physical Settlement with respect to any conversion of Notes~~Except as set forth in ‎Section 14.03(b) and ‎Section 14.07(a), the Company shall ~~deliver~~ pay or deliver, as the case may be, the consideration due in respect of ~~conversion~~ the Conversion Obligation on the ~~third~~ fourth Business Day immediately following the relevant Conversion Date. If the Company elects (or is deemed to have elected) Cash Settlement or Combination Settlement with respect to any conversion of Notes, except as set forth in Section 4.04(b) and Section 4.07(a), the Company shall deliver the consideration due in respect of conversion on the third Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any shares of Common Stock upon conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company or its stock transfer agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Company or its representative receives a sum sufficient to pay any tax that is due by such ▇▇▇▇▇▇ in accordance with the immediately preceding sentence. (f) Upon the conversion of an interest in a Global Note, the Trustee, or the Notes Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. On the Conversion Date, the Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (g) Except as described below, the Company shall not make any separate cash payment for accrued and unpaid interest, if any, upon conversion of Notes. Upon conversion of a Note, the Company’s settlement of the Conversion Obligation in respect of such conversion shall be deemed to satisfy in full its obligation to pay the principal amount of such Note and accrued and unpaid interest, if any, attributable to the period from, and including, March 16, 2016 or the most recent date to which interest has been paid or provided for to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon conversion of a Note into a combination of cash and shares of Common Stock, accrued and unpaid interest shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if a Note is submitted for conversion after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall receive the full amount of interest payable on such Note on the corresponding Interest Payment Date notwithstanding the conversion. A Note surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the principal amount of the Note so converted; provided that no such payment need be made: (i) for conversions following the Regular Record Date immediately preceding the Maturity Date; (ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (iv) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note. (h) Each conversion shall be deemed to have been effected as to any Note surrendered for conversion on the Conversion Date; provided that the Person in whose name the certificate for any shares of Common Stock issuable upon conversion is registered shall be treated as the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects, or is deemed to have elected, to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon the conversion of a Note, the Person who surrendered such Note for conversion shall no longer be a Holder of such Note surrendered for conversion; provided that (x) if such Note was converted after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Note on the related Interest Payment Date in accordance with Section 4.02(g) and (y) the converting Holder shall have the right to receive the consideration due upon conversion of such Note in accordance with this Section 4.02. (i) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock that would otherwise be issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.Conve

Appears in 1 contract

Sources: Indenture (WEIBO Corp)

Settlement Upon Conversion; Conversion Procedures. (a) Upon conversion of a Note, the Company shall, subject to this Section 4.02, Section 4.04(b) and Section 4.07, pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of such Note being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (i) of this Section 4.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock (“Combination Settlement”), at its election, as set forth in this Section 4.02. If the Company has not satisfied the Share Reservation Condition prior to the relevant Settlement Method Election Deadline, the Company shall be deemed to have elected Cash Settlement with respect to any and all conversions to which such Settlement Method Election Deadline applies as described below. (i) All conversions occurring on or after ~~September 15~~February 1, ~~2020~~ 2023 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity ~~Date, and all conversions for which the relevant Conversion~~ Date ~~occurs after the Company’s issuance of a Redemption Notice with respect to Notes and prior to the Redemption Date,~~ shall be settled using the same Settlement Method. Except for any conversions described in the preceding sentence, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. If the Company has satisfied the Share Reservation Condition and elects a Settlement Method, the Company shall notify the converting ~~Holders~~Holders in writing, ~~through~~ with a copy to the Trustee and the Conversion Agent (if other than the Trustee~~) in writing~~), of the Settlement Method it has selected no later than the close of business on the Trading Day immediately following the related Conversion Date (or in the case of any conversions ~~(A) for which the relevant Conversion Date occurs after the date of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice, or (B)~~ occurring on or after ~~September 15~~February 1, ~~2020~~ 2023 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Business Day immediately preceding ~~September 15~~February 1, ~~2020~~2023) (in either case, the “Settlement Method Election ~~Date~~Deadline”). If the Company has not satisfied the Share Reservation Condition prior to such Settlement Method Election Deadline, the Company shall be deemed to have elected Cash Settlement for all conversions (A) with such Conversion Date or (B) on or after February 1, 2023 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, as applicable. If the Company has satisfied the Share Reservation Condition in accordance with the immediately preceding sentence but does not elect a Settlement Method prior to ~~the deadline set forth in the immediately preceding sentence~~ applicable Settlement Method Election Deadline, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement, and shall be deemed to have elected Combination Settlement in respect of the Conversion Obligation pursuant to Section 4.02(a), and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company is permitted to elect and elects Combination Settlement but does not notify converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing prior to the deadline set forth in this Section 4.02(a)(i) of the Specified Dollar Amount per $1,000, such Specified Dollar Amount shall be deemed to be $1,000. In addition, prior to February 1, 2023, the Company may, at its option, irrevocably elect a Settlement Method (in the case of Physical Settlement or Combination Settlement, in the event the Company shall have satisfied the Share Reservation Condition), and, in the event the Company shall be permitted to, and shall irrevocably elect Combination Settlement, the Company may also, but shall not be required to, irrevocably elect a Specified Dollar Amount, for all Conversion Dates occurring subsequent to the date the Company delivers written notice of such election to Holders, the Trustee and the Conversion Agent (if other than the Trustee) (any such election, an “Irrevocable Settlement Election”). For the avoidance of doubt, the Company shall not be required to enter into a supplemental indenture under Article 10 in connection with any Irrevocable Settlement Election. (ii) Settlement amounts upon a conversion of Notes shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate, subject to Section 4.02(i); (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 60 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a settlement amount equal to the sum of the Daily Settlement Amounts for each of the 60 30 consecutive Trading Days during the related Observation Period, subject to Section 4.02(i). (iii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock. (b) Subject to Section 4.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Certificated Note (A) complete and manually sign an irrevocable notice to the Conversion Agent as set forth in the Form of Conversion Notice attached to the Form of Note set forth in Exhibit A hereto (a “Conversion Notice”) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered and deliver such Conversion Notice to the Conversion Agent, (B) deliver such Conversion Notice and Note, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), to the Conversion Agent and (C) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in subsection (g) of this Section 4.02 and (ii) in the case of a Global Note, comply with the Applicable Procedures for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in subsection (g) of this Section 4.02. The Conversion Agent shall notify the Company of any conversion pursuant to this Article 4 on the Conversion Date for such conversion. No Conversion Notice with respect to any Notes may be surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Repurchase Notice to the Company in respect of such Notes and not validly withdrawn such Repurchase Notice in accordance with Section 3.02(c). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If the Company elects Physical Settlement with respect to any conversion of Notes, the Company shall deliver the consideration due in respect of conversion on the ~~third~~ second Business Day immediately following the relevant Conversion Date (provided that, with respect to any conversion of Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall settle any such conversion on the Maturity Date). If the Company elects (or is deemed to have elected) Cash Settlement or Combination Settlement with respect to any conversion of Notes, except as set forth in Section 4.04(b) and Section 4.07(a), the Company shall deliver the consideration due in respect of conversion on the ~~third~~ second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any shares of Common Stock upon conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company or its stock transfer agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Company or its representative receives a sum sufficient to pay any tax that is due by such ~~▇▇▇▇▇▇~~ Holder in accordance with the immediately preceding sentence. (f) Upon the conversion of an interest in a Global Note, the Trustee, or the Notes Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. On the Conversion Date, the Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (g) Except as described below, the Company shall not make any separate cash payment for accrued and unpaid interest, if any, upon conversion of Notes. Upon conversion of a Note, the Company’s settlement of the Conversion Obligation in respect of such conversion shall be deemed to satisfy in full its obligation to pay the principal amount of such Note and accrued and unpaid interest, if any, attributable to the period from, and including, ~~March 16, 2016~~ the date of this Indenture or the most recent date to which interest has been paid or provided for to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon conversion of a Note into a combination of cash and shares of Common Stock, accrued and unpaid interest shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if a Note is submitted for conversion after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall receive the full amount of interest payable on such Note on the corresponding Interest Payment Date notwithstanding the conversion. A Note surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the principal amount of the Note so converted; provided that no such payment need be made: (i) for conversions following the Regular Record Date immediately preceding the Maturity Date; (ii) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (iii) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day following the corresponding Interest Payment Date; or (iviii) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note. (h) Each conversion shall be deemed to have been effected as to any Note surrendered for conversion on the Conversion Date; provided that the Person in whose name the certificate for any shares of Common Stock issuable upon conversion is registered shall be treated as the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects, or is deemed to have elected, to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon the conversion of a Note, the Person who surrendered such Note for conversion shall no longer be a Holder of such Note surrendered for conversion; provided that (x) if such Note was converted after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Note on the related Interest Payment Date in accordance with Section 4.02(g) and (y) the converting Holder shall have the right to receive the consideration due upon conversion of such Note in accordance with this Section 4.02. (i) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock that would otherwise be issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Nuvasive Inc)

Settlement Upon Conversion; Conversion Procedures. (a) ~~Upon conversion of a Note, the Company shall, subject~~ Subject to this Section 4.02, Section ~~4.04(b)~~ 4.03 and Section ~~4.07~~4.06, upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of ~~such Note~~ Securities being converted, cash (“Cash Settlement”), shares of Class A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (ih) of this Section 4.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (h) of this Section 4.02 (“Combination Settlement”), at its election, as set forth in this Section 4.02. (i) All conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~September~~ June 15, ~~2020 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date~~2029, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to ~~Notes~~ the Securities and prior to the related Redemption Date, shall be settled using the same Settlement Method. . (ii) Except for any conversions ~~described~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Securities, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after June 15, 2029, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 4.01(d) in the ~~preceding sentence~~related notice described therein, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion Dates~~. If~~ . (iii) If, in respect of any Conversion Date (or (x) any conversions for which the relevant Conversion Date occurs during the period after the date of issuance of a Redemption Notice with respect to the Securities and prior to the related Redemption Date, (y) any conversions for which the relevant Conversion Date occurs on or after June 15, 2029 (other than conversions described in clause (x) above) or (z) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 4.01(d) in the related notice described therein), the Company elects to deliver a notice (the “Settlement ~~Method~~Notice”) of the relevant Settlement Method in respect of such Conversion Date (or all Conversion Dates during such period, as the case may be), the ~~Company shall notify the converting Holders~~Company, through the ~~Trustee and the Conversion Agent (if other than the~~ Trustee~~) in writing~~, ~~of the~~ shall deliver such Settlement ~~Method it has selected~~ Notice to converting Holders no later than the close of business on the Trading Day immediately following the ~~related~~ relevant Conversion Date (or or, in the case of (x) any conversions ~~(A)~~ for which the relevant Conversion Date occurs during the period after the date of issuance of a Redemption Notice with respect to the Securities and prior to the related Redemption Date, in such Redemption Notice, or (By) ~~occurring~~ any conversions for which the relevant Conversion Date occurs on or after ~~September~~ June 15, ~~2020 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date~~2029 (other than conversions described in clause (x) above), no later than ~~the close of business on the Business Day immediately preceding September~~ June 15, ~~2020~~2029 or (z) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 4.01(d), in the related notice described therein) (in ~~either~~ each case, the “Settlement Method Election ~~Date~~Deadline”). If Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If, with respect to any conversion, the Company does not elect a Settlement Method ~~prior~~ with respect to any conversion by the ~~deadline set forth in the immediately preceding sentence~~ relevant Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement,~~ Method with respect to such conversion and the Company shall be deemed to have elected the Default Settlement Method with respect to such conversion. If the Company timely delivers a Settlement Notice electing Combination Settlement in with respect to a conversion, but does not timely notify the converting Holders of the ~~Conversion Obligation pursuant~~ applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion shall be deemed to ~~Section 4.02(a)~~be $1,000 per $1,000 principal amount of Securities. For the avoidance of doubt, ~~and~~ the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default under this Indenture. The Company may, from time to time prior to June 15, 2029, change the Default Settlement Method by sending written notice of the new Default Settlement Method to the Holders through the Trustee. In addition, the Company may, by notice to the Holders through the Trustee prior to June 15, 2029, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Securities of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of ~~Notes~~ Securities at or above any specific amount set forth in such election notice, that shall ~~be equal~~ apply to ~~$1,000~~all conversions of Securities with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement ~~but does not notify converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing prior~~ with an ability to ~~the deadline~~ continue to set ~~forth in this Section 4.02(a)(i) of~~ the Specified Dollar Amount per $~~1,000~~1,000 principal amount of Securities at or above a specified amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Securities through the Trustee of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions as described above, or, if the Company does not timely notify Holders of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Securities. Concurrently with providing notice to the Holders through the Trustee of such change in the Default Settlement Method or election to irrevocably fix the Settlement Method, the Company shall promptly file a report on Form 8-K or issue a press release announcing that the Company has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable Settlement Method election shall affect any Settlement Method theretofore elected (or deemed to be ~~$1,000~~elected) with respect to any Security pursuant to the provisions described in this Section 4.02(a)(iii). For the avoidance of doubt, such an irrevocable Settlement Method election, if made, shall be effective without the need to amend this Indenture or the Securities, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (iiiv) ~~Settlement amounts upon a~~ The cash, shares of Class A Common Stock or combination of cash and shares of Class A Common Stock in respect of any conversion of ~~Notes~~ Securities (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of ~~Notes~~ Securities being converted a number of shares of Class A Common Stock equal to the Conversion ~~Rate, subject to Section 4.02(i)~~Rate in effect on the Conversion Date; (B) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of ~~Notes~~ Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 60 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the converting Holder~~ in respect of each $1,000 principal amount of ~~Notes~~ Securities being converted, a ~~settlement amount~~ Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 60 50 consecutive Trading Days during the related Observation Period~~, subject to Section 4.02(i). (iii)~~ . The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share~~share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) ~~in writing~~ of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (ba) ~~Subject to Section 4.02(e), before~~ Before any Holder of a ~~Note~~ Security shall be entitled to convert a ~~Note~~ Security as set forth above, such Holder shall (i) in the case of a Certificated ~~Note~~ Security (A) ~~complete and~~ complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Conversion Notice attached to the Form of ~~Note~~ Security set forth in Exhibit A hereto (a “Conversion Notice”) or a facsimile of the Conversion Notice, at the office of the Conversion Agent and state in writing therein the principal amount of ~~Notes~~ Securities to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered and deliver such Conversion Notice to the Conversion Agentconverted, (B) deliver such ~~Conversion Notice and Note~~Security, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), to the Conversion Agent and (C) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in subsection (gf) of this Section 4.02 and (ii) in the case of a Global ~~Note~~Security, comply with the Applicable Procedures for converting a beneficial interest in a Global ~~Note~~ Security and, if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in subsection (gf) of this Section 4.02. The Trustee (and, if different, the Conversion ~~Agent~~ Agent) shall notify the Company of any conversion pursuant to this Article 4 on the Conversion Date for such conversion. ~~No Conversion~~ If a Holder has already delivered a Repurchase Exercise Notice with respect to ~~any Notes~~ a Security, the Holder may ~~be surrendered by a~~ not surrender that Security for conversion until the Holder ~~thereof if such ▇▇▇▇▇▇~~ has ~~also delivered a~~ withdrawn the Repurchase ~~Notice to the Company in respect of such Notes and not validly withdrawn such Repurchase~~ Exercise Notice in accordance with Section ~~3.02(c~~3.05(c). If a Holder submits its Securities for required repurchase, the Holder’s right to withdraw the Repurchase Exercise Notice and convert the Securities that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one ~~Note~~ Security shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such ~~Notes~~ Securities shall be computed on the basis of the aggregate principal amount of the ~~Notes~~ Securities (or specified portions thereof to the extent permitted ~~hereby~~thereby) so surrendered. (cb) A ~~Note~~ Security shall be deemed to have been converted ~~immediately prior to the close of business~~ on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~If the Company elects Physical Settlement with respect to any conversion of Notes~~Except as set forth in Section 4.03 or Section 4.06, the Company shall deliver the consideration due in respect of ~~conversion~~ the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date~~. If~~ , if the Company elects (Physical Settlement, or is deemed to have elected) Cash Settlement or Combination Settlement with respect to any conversion of Notes, except as set forth in Section 4.04(b) and Section 4.07(a), the Company shall deliver the consideration due in respect of conversion on the ~~third~~ second Business Day immediately following the last Trading Day of the relevant Observation Period~~. If~~ , in the case of any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligationother Settlement Method. (dc) In case any ~~Note~~ Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the ~~Note~~ Security so surrendered a new ~~Note~~ Security or ~~Notes~~ Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered ~~Note~~Security, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new ~~Notes~~ Securities issued upon such conversion being different from the name of the Holder of the old ~~Notes~~ Securities surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any shares of Common Stock upon conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company or its stock transfer agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Company or its representative receives a sum sufficient to pay any tax that is due by such ▇▇▇▇▇▇ in accordance with the immediately preceding sentence. (fd) Upon the conversion of an interest in a Global ~~Note~~Security, the Trustee, or the ~~Notes~~ Securities Custodian at the direction of the Trustee, shall make a notation on such Global ~~Note~~ Security as to the reduction in the principal amount represented thereby. ~~On the Conversion Date, the~~ The Company shall notify the Trustee in writing of any conversion of ~~Notes~~ Securities effected through ~~any~~ the Conversion Agent (if other than the Trustee). (ge) Except as described below, the Company shall not make any separate cash payment for accrued and unpaid interest, if any, upon conversion of ~~Notes~~Securities. ~~Upon conversion of a Note, the~~ The Company’s settlement of the Conversion Obligation ~~in respect of such conversion~~ shall be deemed to satisfy in full its obligation to pay the principal amount of ~~such Note~~ the Security and accrued and unpaid interest, if any, attributable to the period ~~from, and including, March 16, 2016 or the most recent date to which interest has been paid or provided for~~ to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~a Note~~ Securities into a combination of cash and shares of Class A Common Stock, accrued and unpaid interest ~~shall~~ will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if ~~a Note is~~ Securities are submitted for conversion after the close of business on a Regular Record Date, ~~the Holder~~ Holders of such ~~Note~~ Securities as of the close of business on such Regular Record Date shall receive the full amount of interest payable on such ~~Note~~ Securities on the corresponding Interest Payment Date notwithstanding the conversion~~. A Note~~ , and Securities surrendered for conversion ~~during the period from~~ after the close of business on ~~any~~ a Regular Record Date and prior to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the principal amount of the ~~Note so~~ Securities being converted; provided that no such payment need be made: (i) for conversions following the Regular Record Date immediately preceding the Maturity Date; (ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment ~~Date~~Date (or, if such Interest Payment Date is not a Business Day, the immediately following Business Day); (iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment ~~Date~~Date (or, if such Interest Payment Date is not a Business Day, the immediately following Business Day); or (iv) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such ~~Note~~Security. For the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date, if any, regardless of whether their Securities have been converted following such Regular Record Date. Upon a conversion of Securities, such Person shall no longer be a Holder of such Securities surrendered for conversion. (hf) ~~Each~~ The Person in whose name the shares of Class A Common Stock shall be issuable upon conversion shall be deemed to have been effected as to any Note surrendered for conversion on the Conversion Date; provided that the Person in whose name the certificate for any shares of Common Stock issuable upon conversion is registered shall be ~~treated as the holder~~ a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects, or is deemed to have elected, to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon the conversion of a Note, the Person who surrendered such Note for conversion shall no longer be a Holder of such Note surrendered for conversion; provided that (x) if such Note was converted after the close of business on a Regular Record Date, the Holder of such Note as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Note on the related Interest Payment Date in accordance with Section 4.02(g) and (y) the converting Holder shall have the right to receive the consideration due upon conversion of such Note in accordance with this Section 4.02. (i) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock that would otherwise be issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.rel

Appears in 1 contract

Sources: Indenture (Ezcorp Inc)

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