Settlement Upon Conversion. Upon any conversion of this Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Section 3(c), either (x) shares of Common Stock, rounded down to the nearest whole share (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, rounded down to the nearest whole share (a “Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any conversion of this Note; provided, however, that: (i) subject to clause (ii) below, the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all conversions of this Note with a Conversion Date that occurs on or after the related date of Optional Prepayment Notice and before the related Optional Prepayment Date; (iii) the Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date; and (iv) if the Company does not timely elect a Settlement Method with respect to the conversion of this Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute an Event of Default). The Company will have the right, in its sole discretion and exercisable at its election by sending notice of such exercise to the Investors, to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Note.
Appears in 3 contracts
Sources: Convertible Security Agreement (Xos, Inc.), Convertible Security Agreement (Xos, Inc.), Convertible Security Agreement (Xos, Inc.)
Settlement Upon Conversion. (A) Upon any the conversion of this any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Section 3(c)Article 5, either (x) Ordinary Shares, together, if applicable, with cash in lieu of fractional shares of Common Stock, rounded down to the nearest whole share as provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(25.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and Ordinary Shares, together, if applicable, with cash in lieu of fractional shares of Common Stock, rounded down to the nearest whole share as provided in Section 5.03(B)(i)(3) (a “Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any conversion of this a Note; provided, however, that: :
(i) subject to clause (iiiii) below, all conversions of Notes with a Conversion Date that occurs on or after October 1, 2024 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders and the Conversion Agent no later than the Open of Business on October 1, 2024;
(ii) subject to clause (iii) below, if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date occurs before October 1, 2024, then the Company will send notice of such Settlement Method to the Investor Holder of such Note and the Conversion Agent no later than the fifth Close of Business on the Business Day immediately after such Conversion Date; ;
(iiiii) if all or any portion of this Note is Notes are called for Optional PrepaymentRedemption, then (1) the Company will specify, in the related Optional Prepayment Redemption Notice sent pursuant to Section 1(b4.03(G), the Settlement Method that will apply to all conversions of this Note Notes with a Conversion Date that occurs on or after the related date of Optional Prepayment Redemption Notice Date and before the related Optional Prepayment Redemption Date; and (iii2) if such Redemption Date occurs on or after October 1, 2024, then such Settlement Method must be the same Settlement Method that, pursuant to clause (i) above, applies to all conversions of Notes with a Conversion Date that occurs on or after October 1, 2024;
(iv) the Company will use the same Settlement Method for all conversions of Notes with a Conversion Date that occurs on the same day (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes whose Conversion Date; and Dates occur on different days, except as provided in clause (ivi) or (iii) above);
(v) if the Company does not timely elect a Settlement Method with respect to the conversion of this a Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute an a Default or Event of Default). The ;
(vi) if the Company will have timely elects Combination Settlement with respect to the right, in its sole discretion and exercisable at its election by sending notice conversion of a Note but does not timely notify the Holder of such exercise to Note of the Investorsapplicable Specified Dollar Amount, to irrevocably fix then the Settlement Method that Specified Dollar Amount for such conversion will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions $1,000 per $1,000 principal amount of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For (and, for the avoidance of doubt, the failure to timely send such an irrevocable election, if made, notification will not constitute a Default or Event of Default); and
(vii) the Settlement Method will be effective without subject to Sections 5.09(A)(2).
(B) Conversion Consideration.
(i) Generally. Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii), the need type and amount of consideration (the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note to amend this Notebe converted will be as follows:
(1) if Physical Settlement applies to such conversion, a number of Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(2) if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or
(3) if Combination Settlement applies to such conversion, consideration consisting of (a) a number of Ordinary Shares equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (b) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.
Appears in 2 contracts
Sources: Indenture (Amryt Pharma PLC), Indenture (Amryt Pharma PLC)
Settlement Upon Conversion. Upon any (a) Except as provided in Section 11.07(e), upon conversion of this any Note, the Company will settle such conversion by paying and the Parent Guarantor shall pay or deliveringdeliver, as applicable and as provided in this Section 3(cthe case may be, to the converting Holder cash (“Cash Settlement”), either (x) shares of Common Stock, rounded down to the nearest whole together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with Section 11.03(a)(vi) (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, rounded down to the nearest whole together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with Section 11.03(a)(vi) (a “Combination Settlement”). The Company will have , at the right to elect the Company’s election (each of these settlement methods a “Settlement Method applicable to any conversion of this Note; provided, however, that: Method”).
(i) subject to clause (ii) below, the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all All conversions of this Note with a whose Conversion Date that occurs on or after June 4, 2020 shall be settled using the related date of Optional Prepayment Notice and before same Settlement Method. Subject to the related Optional Prepayment Date; (iii) foregoing, the Company will shall use the same Settlement Method for all conversions of Notes with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates, and the Company may elect one Settlement Method with respect to one Conversion Date and another Settlement Method with respect to another Conversion Date.
(ii) The Company shall deliver a notice (the “Settlement Method Notice”) of the Settlement Method elected by the Company in respect of any Conversion Date or any of the periods described below, as the case may be:
(A) by written notice to all Holders of Notes, the Trustee and the Conversion Agent (and, in addition, the Company will issue a press release setting forth its election of such Settlement Method and make the press release available on its website) on or prior to June 4, 2020, in the case of any conversion whose Conversion Date occurs on or after June 4, 2020; and
(B) by written notice to the converting Holder, the Trustee and the Conversion Agent, prior to the Close of Business on the second Scheduled Trading Day following the relevant Conversion Date, in the case of any other conversion.
(iviii) if Any Settlement Method Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Method Notice shall indicate the Specified Dollar Amount. If the Company does not timely elect deliver a Settlement Method with respect Notice prior to the conversion of this Notedeadline set forth in Section 11.03(a)(ii), then the Company will shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation for such conversion, and the Default Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company elects Combination Settlement in respect of its Conversion Obligation in respect of a conversion but does not indicate a Specified Dollar Amount in the relevant Settlement Method (and, for the avoidance of doubtNotice, the failure to timely make such election will not constitute an Event of Default). The Company will have the right, in its sole discretion and exercisable at its election by sending notice of such exercise to the Investors, to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically Specified Dollar Amount shall be deemed to be set $1,000 in respect of such conversion.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of the 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 and the Parent Guarantor, as the case may be, shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, together with cash in lieu of fractional shares pursuant to Section 11.03(a)(vi);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 60 consecutive VWAP Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company and the Parent Guarantor shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Method so fixedAmount equal to the sum of the Daily Settlement Amounts for each of the 60 consecutive VWAP Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Such noticePromptly 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) 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. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) The Parent Guarantor shall not issue any fractional share of Common Stock upon conversion of the Notes, and the Company shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (or, if sentsuch date is not a VWAP Trading Day, must the immediately preceding VWAP Trading Day) in the case of Physical Settlement, or based on the Daily VWAP on the last VWAP Trading Day of the relevant Observation Period in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
(vii) Except as set forth in Section 11.06 and Section 11.07, the applicable Company and the Parent Guarantor shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (y) on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, provided that, in the case of Physical Settlement, with respect to conversions that occur after the Record Date immediately preceding the Maturity Date, the Company and the Parent Guarantor will deliver the relevant number of shares of Common Stock, together with cash in lieu of any fractional shares, on the Maturity Date, or (z) on the third Business Day immediately following the last VWAP Trading Day of the Observation Period, in the case of any other Settlement Method and expressly state Method.
(b) If a Holder surrenders more than one Note for conversion on a single Conversion Date, the number of shares of Common Stock, if any, that the election is irrevocable Company and applicable the Parent Guarantor will deliver, and the amount of cash that the Company will pay pursuant to all conversions Section 11.03(a)(vi) in lieu of fractional shares of Common Stock, if any, shall be determined based on the total principal amount of Notes with so surrendered by such Holder.
(c) If a Holder converts a Note, except as set forth in Section 11.02(g), (i) such Holder shall not receive any separate cash payment (in addition to the Conversion Obligation) for accrued and unpaid interest, if any, on such Note and (ii) the Company’s and the Parent Guarantor’s delivery to such converting Holder of the Conversion Obligation shall be deemed to satisfy in full the Company’s obligation to pay to such Holder (A) the principal amount of such converted Note and (B) accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, subject to Section 11.02(g), accrued and unpaid interest, if any, on a converted Note to but, excluding, the relevant Conversion Date that occurs on shall be deemed to be paid in full rather than cancelled, extinguished or after forfeited. Upon a conversion of the date such notice is sent Notes, subject to Investors. For the avoidance of doubtSection 11.02(g), such an irrevocable electionaccrued and unpaid interest, if madeany, will shall be effective without deemed to be paid first out of the need to amend this Notecash paid upon such conversion, if any.
Appears in 1 contract
Settlement Upon Conversion. Upon any (a) Subject to this Section 5.03, Section 5.06 and Section 5.07, upon conversion of this any Note, the Company will settle such conversion by paying shall pay or deliveringdeliver, as applicable and as provided the case may be, to the converting Holder in this Section 3(crespect of each $1,000 Original Principal Amount of Notes being converted, cash (“Cash Settlement”), either (x) shares of Common Stock, rounded down to the nearest whole together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (a j) of this Section 5.03 (“Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, rounded down to the nearest whole together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (a j) of this Section 5.03 (“Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any conversion of , at its election, as set forth in this Note; provided, however, that: Section 5.03.
(i) subject to clause (ii) below, All conversions for which the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all conversions of this Note with a relevant Conversion Date that occurs on or after August 1, 2033 shall be settled using the related date of Optional Prepayment Notice and before same Settlement Method.
(ii) Except for any conversions for which the related Optional Prepayment Date; (iii) relevant Conversion Date occurs on or after August 1, 2033, the Company will shall use the same Settlement Method for all conversions of Notes with occurring on the same Conversion Date; and (iv) if , but the Company does shall not timely elect a have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the conversion period described in the third immediately succeeding set of this Noteparentheses, then as the case may be), the Company will elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders (with a copy to the Trustee and the Conversion Agent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after August 1, 2033, no later than the close of business on Scheduled Trading Day immediately preceding August 1, 2033). 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 Combination Settlement with respect to 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 Notice shall specify the Default 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 Original Principal Amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 Original Principal Amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 Original Principal Amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 Original Principal Amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 Original Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 Original Principal Amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) At any time prior to August 1, 2033, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 Original Principal Amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Physical Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 5.03(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes.
(b) Subject to Section 5.03(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a global note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 5.03(h) and (ii) in the case of a certificated Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 5.03(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 5 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 3.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(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. The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of Cash Settlement or Combination Settlement, unless such Conversion Date occurs following the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall make such delivery (and payment, if applicable) of the consideration due in respect of the Conversion Obligation on the Maturity Date. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in 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 documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 5.05, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 5.
(g) Upon the conversion of an interest in a global note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such global note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount (and Accreted Principal Amount) of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified an Issuer’s Conversion Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the failure Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to timely make satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such election will Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not constitute an Event issue any fractional share of DefaultCommon Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). The Company will have the rightFor each Note surrendered for conversion, in its sole discretion and exercisable at its election by sending notice of such exercise to the Investors, to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that if the Company is then permitted to elect; (y) no has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such irrevocable election will affect any Settlement Method theretofore elected (or deemed to computation shall be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Notepaid in cash.
Appears in 1 contract
Settlement Upon Conversion. (A) Upon any the conversion of this any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Section 3(c)Article 5, either (x) Ordinary Shares, together, if applicable, with cash in lieu of fractional shares of Common Stock, rounded down to the nearest whole share as provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(25.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and Ordinary Shares, together, if applicable, with cash in lieu of fractional shares of Common Stock, rounded down to the nearest whole share as provided in Section 5.03(B)(i)(3) (a “Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any conversion of this a Note; provided, however, that: :
(i) subject to clause (iiiii) below, all conversions of Notes with a Conversion Date that occurs on or after [free convertibility date] will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders and the Conversion Agent no later than the Open of Business on [free convertibility date];
(ii) subject to clause (iii) below, if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date occurs before [free convertibility date], then the Company will send notice of such Settlement Method to the Investor Holder of such Note and the Conversion Agent no later than the fifth Close of Business on the Business Day immediately after such Conversion Date; ;
(iiiii) if all or any portion of this Note is Notes are called for Optional PrepaymentRedemption, then (1) the Company will specify, in the related Optional Prepayment Redemption Notice sent pursuant to Section 1(b4.03(G), the Settlement Method that will apply to all conversions of this Note with a Conversion Date that occurs on or after the related date of Optional Prepayment Notice and before the related Optional Prepayment Date; (iii) the Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date; and (iv) if the Company does not timely elect a Settlement Method with respect to the conversion of this Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute an Event of Default). The Company will have the right, in its sole discretion and exercisable at its election by sending notice of such exercise to the Investors, to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) related Redemption Notice Date and before the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected)related Redemption Date; and (z2) the Default if such Redemption Date occurs on or after [free convertibility date], then such Settlement Method will automatically must be deemed to be set to the same Settlement Method so fixed. Such noticethat, if sentpursuant to clause (i) above, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable applies to all conversions of Notes with a Conversion Date that occurs on or after [free convertibility date];
(iv) the date such notice is sent to Investors. For Company will use the same Settlement Method for all conversions of Notes with a Conversion Date that occurs on the same day (and, for the avoidance of doubt, such an irrevocable electionthe Company will not be obligated to use the same Settlement Method with respect to conversions of Notes whose Conversion Dates occur on different days, if made, will be effective without the need to amend this Note.except as provided in clause (i) or
Appears in 1 contract
Sources: Indenture
Settlement Upon Conversion. Upon any (a) Except as provided in Section 11.07(e), upon conversion of this any Note, the Company will settle such conversion by paying shall pay or deliveringdeliver, as applicable and as provided in this Section 3(cthe case may be, to the converting Holder cash (“Cash Settlement”), either (x) shares of Common Stock, rounded down to the nearest whole together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with Section 11.03(a)(vi) (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, rounded down to the nearest whole together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with Section 11.03(a)(vi) (a “Combination Settlement”). The Company will have , at the right to elect the Company’s election (each of these settlement methods a “Settlement Method applicable to any conversion of this Note; provided, however, that: Method”).
(i) subject to clause (ii) below, the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all All conversions of this Note with a whose Conversion Date that occurs on or after August 1, 2018 shall be settled using the related date of Optional Prepayment Notice and before same Settlement Method. Subject to the related Optional Prepayment Date; (iii) foregoing, the Company will shall use the same Settlement Method for all conversions of Notes with occurring on the same Conversion Date; , but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates, and the Company may elect one Settlement Method with respect to one Conversion Date and another Settlement Method with respect to another Conversion Date.
(ivii) if The Company shall deliver a notice (the “Settlement Method Notice”) of the Settlement Method elected by the Company in respect of any Conversion Date or any of the periods described below by written notice to the converting Holder, the Trustee and the Conversion Agent, prior to the Close of Business on the Scheduled Trading Day immediately following the relevant Conversion Date, (or, in the case of any other conversion whose Conversion Date is on or after August 1, 2018, no later than the Close of Business on the Scheduled Trading Day immediately preceding August 1, 2018).
(iii) Any Settlement Method Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Method Notice shall indicate the Specified Dollar Amount. If the Company does not timely elect deliver a Settlement Method with respect Notice prior to the conversion of this Notedeadline set forth in Section 11.03(a)(ii), then the Company will shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation for such conversion, and the Default Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company elects Combination Settlement in respect of its Conversion Obligation in respect of a conversion but does not indicate a Specified Dollar Amount in the relevant Settlement Method (and, for the avoidance of doubtNotice, the failure to timely make such election will not constitute an Event of Default). The Company will have the right, in its sole discretion and exercisable at its election by sending notice of such exercise to the Investors, to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically Specified Dollar Amount shall be deemed to be set $1,000 in respect of such conversion.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of the Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, together with cash in lieu of fractional shares pursuant to Section 11.03(a)(vi);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive VWAP Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Method so fixedAmount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Such noticePromptly 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) 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. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (or, if sentsuch date is not a VWAP Trading Day, must the immediately preceding VWAP Trading Day) in the case of Physical Settlement, or based on the Daily VWAP on the last VWAP Trading Day of the relevant Observation Period in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
(vii) Except as set forth in Section 11.06 and Section 11.07, the applicable Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (y) on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or (z) on the third Business Day immediately following the last VWAP Trading Day of the Observation Period, in the case of any other Settlement Method and expressly state Method.
(b) If a Holder surrenders more than one Note for conversion on a single Conversion Date, the number of shares of Common Stock, if any, that the election is irrevocable Company will deliver, and applicable the amount of cash that the Company will pay pursuant to all conversions Section 11.03(a)(vi) in lieu of fractional shares of Common Stock, if any, shall be determined based on the total principal amount of Notes with so surrendered by such Holder.
(c) If a Holder converts a Note, except as set forth in Section 11.02(g), (i) such Holder shall not receive any separate cash payment (in addition to the Conversion Obligation) for accrued and unpaid interest, if any, on such Note and (ii) the Company’s delivery to such converting Holder of the Conversion Obligation shall be deemed to satisfy in full the Company’s obligation to pay to such Holder (A) the principal amount of such converted Note and (B) accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, subject to Section 11.02(g), accrued and unpaid interest, if any, on a converted Note to but, excluding, the relevant Conversion Date that occurs on shall be deemed to be paid in full rather than cancelled, extinguished or after forfeited. Upon a conversion of the date such notice is sent Notes, subject to Investors. For the avoidance of doubtSection 11.02(g), such an irrevocable electionaccrued and unpaid interest, if madeany, will shall be effective without deemed to be paid first out of the need to amend this Notecash paid upon such conversion, if any.
Appears in 1 contract
Sources: Indenture (NRG Yield, Inc.)
Settlement Upon Conversion. (a) Upon any the conversion of this any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Section 3(c)Article IV, either (x) shares of Common StockStock as provided in Section 4.03(c)(i), rounded down to the nearest whole share together, if applicable, with cash in lieu of fractional shares (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(24.03(c)(ii) (a “Cash Settlement”); or (z) a combination of cash and shares of Common StockStock as provided in Section 4.03(c)(iii), rounded down to the nearest whole share together, if applicable, with cash in lieu of fractional shares (a “Combination Settlement”). .
(b) The Company will shall have the right to elect the Settlement Method applicable to any conversion of this a Note; provided, however, that: :
(i) subject to clause (ii) belowexcept as otherwise provided in this Section 4.03(b), the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all conversions of this Note with a Conversion Date that occurs on or after the related date of Optional Prepayment Notice and before the related Optional Prepayment Date; (iii) the Company will shall use the same Settlement Method for all conversions of Notes with the same Conversion Date; , but the Company shall not be obligated to use the same Settlement Method for Conversion Dates that occur on different days;
(ii) all conversions of Notes with a Conversion Date that occurs on or after the 125th Scheduled Trading Day immediately before the Stated Maturity shall be settled using the same Settlement Method, and the Company shall send notice of such Settlement Method to Holders and the Trustee no later than the close of business on the 125th Scheduled Trading Day immediately before the Stated Maturity;
(iii) if the Company elects a Settlement Method for a conversion of Notes with a Conversion Date that occurs before the 125th Scheduled Trading Day immediately before the Stated Maturity, then the Company will send notice of such Settlement Method to the converting Holder no later than the close of business on the Business Day immediately after the Conversion Date;
(iv) if the Company does not timely elect a Settlement Method with respect to the conversion of this Noteany conversion, then the Company will shall be deemed to have elected the Default Settlement Method Method;
(andv) if the Company timely elects Combination Settlement with respect to a conversion of Notes but does not timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 Original Principal Amount of Notes;
(vi) for the avoidance of doubt, the Company’s failure to timely make such election elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute an Event of Default). The ; and
(vii) if any Notes are called for Redemption, then (1) the Company will have the rightspecify, in its sole discretion and exercisable at its election by sending the related Redemption Notice sent pursuant to Section 8.02 (and, in the case of a Redemption of less than all of the Notes then outstanding, a separate notice to Holders of Notes not called for such exercise to the InvestorsRedemption), to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) related Redemption Notice Date and before the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected)related Redemption Date; and (z2) if such Redemption Date occurs on or after 125th Scheduled Trading Day immediately before the Default Stated Maturity, then such Settlement Method will automatically must be deemed to be set to the same Settlement Method so fixed. Such noticethat, if sentpursuant to clause (ii) above, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable applies to all conversions of Notes with a Conversion Date that occurs on or after 125th Scheduled Trading Day immediately before the Stated Maturity.
(c) The consideration due upon conversion of each $1,000 Original Principal Amount of Notes will be as follows:
(i) if Physical Settlement applies, a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(ii) if Cash Settlement applies, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or
(iii) if Combination Settlement applies, (i) a number of shares of Common Stock equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (ii) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period; provided, however, that, in lieu of delivering any fractional share of Common Stock otherwise due upon conversion, the Company shall pay cash based on (i) the Daily VWAP on the applicable Conversion Date (or, if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (ii) the Daily VWAP on the last VWAP Trading Day of the applicable Observation Period, in the case of Combination Settlement. If a Holder converts more than one Note on a Conversion Date, then the consideration due upon such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, Applicable Procedures) be computed based on the total Original Principal Amount of Notes converted on such Conversion Date by that Holder.
(d) If Cash Settlement or Combination Settlement applies to the conversion of any Note, then the Company will determine the consideration due upon conversion thereupon promptly following the last VWAP Trading Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion Agent will have any duty to make any such determination.
(e) Except as set forth in Section 4.04, 4.06 and 4.07, the Company shall deliver the consideration due upon conversion in respect of any Notes as follows: (i) if Cash Settlement or Combination Settlement applies, on or before the second Business Day immediately after the last VWAP Trading Day of such Observation Period; and (ii) if Physical Settlement applies, on or before the second Business Day immediately after such Conversion Date for such conversion. However, if Physical Settlement applies to the conversion of any Note with a Conversion Date that is after the Regular Record Date immediately before the Stated Maturity, then the Company shall pay or deliver, as applicable, the consideration due upon such conversion no later than the Stated Maturity.
(f) Upon the conversion of any Notes, the Holder shall not be entitled to receive any separate cash payment for accrued and unpaid interest and Additional Interest, if any, except to the extent specified below. The Company’s payment or delivery, as the case may be, to such Holder of the consideration due upon conversion of such Notes shall be deemed to satisfy in full the Company’s obligation to pay (i) the Original Principal Amount (and Accreted Principal Amount) of the Notes so converted and (ii) accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date shall be deemed, except to the extent specified below, to be paid in full rather than cancelled, extinguished or forfeited. In addition, if the consideration due upon conversion consists of both cash and shares of Common Stock, then accrued and unpaid interest that is deemed to be paid therewith shall be deemed to be paid first out of such cash. Notwithstanding the foregoing, if Notes are submitted for conversion after the close of business on a Regular Record Date for the payment of interest, Holders of such Notes at the close of business on such Regular Record Date shall receive the full amount of interest and Additional Interest, if any, payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes submitted for conversion between the close of business on any Regular Record Date and the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest and Additional Interest, if any, payable on the next Interest Payment Date on the Original Principal Amount of Notes to be converted; provided that no such payment need be made (i) 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 after the corresponding Interest Payment Date, (ii) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note, (iii) if the Notes are surrendered for conversion on or after the Regular Record Date immediately preceding the Stated Maturity, or (iv) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day after the corresponding Interest Payment Date. If the exceptions described in the immediately preceding sentence do not apply and a Holder surrenders its Notes for conversion on a date such notice that is sent to Investors. For the avoidance of doubtnot an Interest Payment Date, such an irrevocable electionHolder shall not receive any interest for the period from the Interest Payment Date immediately preceding the Conversion Date or for any later period. The Company shall pay interest and Additional Interest, if madeany, will at the Stated Maturity on all Notes converted after the Regular Record Date immediately preceding the Stated Maturity, and converting Holders shall not be effective without required to pay to the need to amend this NoteCompany equivalent interest (and Additional Interest, if any) amounts.
Appears in 1 contract
Settlement Upon Conversion. (A) Upon any the conversion of this any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Section 3(c)Article 5, either (x) Ordinary Shares, together, if applicable, with cash in lieu of fractional shares of Common Stock, rounded down to the nearest whole share as provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(25.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and Ordinary Shares, together, if applicable, with cash in lieu of fractional shares of Common Stock, rounded down to the nearest whole share as provided in Section 5.03(B)(i)(3) (a “Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any conversion of this a Note; provided, however, that: :
(i) subject to clause (iiiii) below, all conversions of Notes with a Conversion Date that occurs on or after [free convertibility date]9 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders and the Conversion Agent no later than the Open of Business on [free convertibility date];
(ii) subject to clause (iii) below, if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date occurs before [free convertibility date], then the Company will send notice of such Settlement Method to the Investor Holder of such Note and the Conversion Agent no later than the fifth Close of Business on the Business Day immediately after such Conversion Date; ;
(iiiii) if all or any portion of this Note is Notes are called for Optional PrepaymentRedemption, then (1) the Company will specify, in the related Optional Prepayment Redemption Notice sent pursuant to Section 1(b4.03(G), the Settlement Method that will apply to all conversions of this Note Notes with a Conversion Date that occurs on or after the related date of Optional Prepayment Redemption Notice Date and before the related Optional Prepayment Redemption Date; and (iii2) if such Redemption Date occurs on or after [free convertibility date], then such Settlement Method must be the same Settlement Method that, pursuant to clause (i) above, applies to all conversions of Notes with a Conversion Date that occurs on or after [free convertibility date]; 9 Insert the Interest Payment Date immediately before the Maturity Date.
(iv) the Company will use the same Settlement Method for all conversions of Notes with a Conversion Date that occurs on the same day (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes whose Conversion Date; and Dates occur on different days, except as provided in clause (ivi) or (iii) above);
(v) if the Company does not timely elect a Settlement Method with respect to the conversion of this a Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute an a Default or Event of Default). The ;
(vi) if the Company will have timely elects Combination Settlement with respect to the right, in its sole discretion and exercisable at its election by sending notice conversion of a Note but does not timely notify the Holder of such exercise to Note of the Investorsapplicable Specified Dollar Amount, to irrevocably fix then the Settlement Method that Specified Dollar Amount for such conversion will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions $1,000 per $1,000 principal amount of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For (and, for the avoidance of doubt, the failure to timely send such an irrevocable election, if made, notification will not constitute a Default or Event of Default); and
(vii) the Settlement Method will be effective without subject to Sections 5.09(A)(2).
(B) Conversion Consideration.
(i) Generally. Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii), the need type and amount of consideration (the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note to amend this Notebe converted will be as follows:
(1) if Physical Settlement applies to such conversion, a number of Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(2) if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or
(3) if Combination Settlement applies to such conversion, consideration consisting of (a) a number of Ordinary Shares equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (b) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.
Appears in 1 contract
Settlement Upon Conversion. Upon any (a) Subject to Section 6.01, a Holder upon conversion will receive, in respect of this Noteeach $1,000 aggregate principal amount of such Holder’s Securities being converted, cash, shares of Common Stock or a combination thereof at the Company’s election. All conversions after June 1, 2014 will be settled in the same relative proportions of cash and shares of Common Stock (the “Settlement Method”). If the Company has not delivered a notice to the Conversion Agent and Holders of its election of Settlement Method on or prior to June 1, 2014, the Company will settle such conversion by paying will, with respect to any conversions thereafter, be deemed to have elected to deliver, pursuant to 6.05(b)(iii) below, cash or delivering, as applicable and as provided in this Section 3(c), either (x) shares of Common Stock, rounded down to the nearest whole share (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, rounded down to as the nearest whole share (a “Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any conversion of this Note; provided, however, that: (i) subject to clause (ii) below, the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specifycase may be, in respect of its Conversion Obligation and the related Optional Prepayment Notice sent pursuant Specified Dollar Amount will be equal to Section 1(b)$1,000. On or prior to June 1, the Settlement Method that will apply to all conversions of this Note with a Conversion Date that occurs on or after the related date of Optional Prepayment Notice and before the related Optional Prepayment Date; (iii) 2014, the Company will use the same Settlement Method for all conversions of Notes with occurring on any given Conversion Date. Except for any conversions that occur after June 1, 2014, the Company will not have any obligation to use the same Conversion Date; and (iv) if the Company does not timely elect a Settlement Method with respect to the conversion of this Note, then conversions that occur on different Conversion Dates. If the Company elects a particular settlement method in connection with any conversion on or prior to June 1, 2014, it will inform Holders converting at that time through the Conversion Agent of the Settlement Method the Company has selected (including the Specified Dollar Amount, if applicable), no later than the second Business Day immediately following the related Conversion Date. If the Company does not make such an election, it will be deemed to have elected to deliver, pursuant to Section 6.05(b)(iii) below, cash or a combination of cash and shares of the Default Settlement Method (andCommon Stock, as the case may be, in respect of its Conversion Obligation and the Specified Dollar Amount will be equal to $1,000 for the avoidance of doubt, the failure to timely make each such election will not constitute an Event of Default)Conversion Date. The Company will have the rightmay, in its sole discretion and exercisable at its election option, for purposes of the Daily Settlement Amount irrevocably elect a particular Specified Dollar Amount for all subsequent conversions by sending notice of such exercise election to the InvestorsHolders. As of the date of this Indenture, it is the Company’s policy and intent to irrevocably fix settle the principal amount of the Securities in cash.
(b) The Conversion Obligation deliverable on the Settlement Method that Date will apply be calculated as follows:
(i) If the Company elects to all conversions satisfy its Conversion Obligation solely in shares of Notes with Common Stock, the Company will deliver to the converting Holder a Conversion Date that occurs on or after the date such notice is sent number of shares of Common Stock equal to Investors; provided that (x1) the Settlement Method so elected must aggregate principal amount of Securities to be a Settlement Method that converted divided by $1,000, multiplied by (2) the applicable Conversion Rate;
(ii) If the Company is then permitted elects to elect; (y) no such irrevocable election satisfy its Conversion Obligation solely in cash, the Company will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set deliver to the Settlement Method so fixed. Such noticeconverting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Conversion Period; and
(iii) If the Company elects to satisfy its Conversion Obligation through the delivery of a Combination of cash and Common Stock, it will deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted an amount of cash and shares of Common Stock, if sentany, must set forth equal to the applicable sum of the Daily Settlement Method and expressly state that Amounts for each of the election is irrevocable and applicable to all conversions of Notes with a 25 consecutive Trading Days during the related Conversion Date that occurs on or after the date such notice is sent to Investors. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this NotePeriod.
Appears in 1 contract
Settlement Upon Conversion. (a) Upon any the conversion of this any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Section 3(c)Article IV, either (x) shares of Common StockStock as provided in Section 4.03(c)(i), rounded down to the nearest whole share together, if applicable, with cash in lieu of fractional shares (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(24.03(c)(ii) (a “Cash Settlement”); or (z) a combination of cash and shares of Common StockStock as provided in Section 4.03(c)(iii), rounded down to the nearest whole share together, if applicable, with cash in lieu of fractional shares (a “Combination Settlement”). .
(b) The Company will shall have the right to elect the Settlement Method applicable to any conversion of this a Note; provided, however, that: :
(i) subject to clause (ii) belowexcept as described in this Section 4.03(b), the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all conversions of this Note with a Conversion Date that occurs on or after the related date of Optional Prepayment Notice and before the related Optional Prepayment Date; (iii) the Company will shall use the same Settlement Method for all conversions of Notes with the same Conversion Date; , but the Company shall not be obligated to use the same Settlement Method for Conversion Dates that occur on different days;
(ii) all conversions of Notes with a Conversion Date that occurs on or after the 125th Scheduled Trading Day immediately before the Stated Maturity shall be settled using the same Settlement Method, and the Company shall send notice of such Settlement Method to Holders and the Trustee no later than the close of business on the 125th Scheduled Trading Day immediately before the Stated Maturity;
(iii) if the Company elects a Settlement Method for a conversion of Notes with a Conversion Date that occurs before the 125th Scheduled Trading Day immediately before the Stated Maturity, then the Company will send notice of such Settlement Method to the converting Holder no later than the close of business on the Business Day immediately after the Conversion Date;
(iv) if the Company does not timely elect a Settlement Method with respect to the conversion of this Noteany conversion, then the Company will shall be deemed to have elected the Default Settlement Method Method;
(v) if the Company timely elects Combination Settlement with respect to a conversion of Notes but does not timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes; and,
(vi) for the avoidance of doubt, the Company’s failure to timely make such election elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute an Event of Default.
(c) The consideration due upon conversion of each $1,000 principal amount of Notes will be as follows:
(i) if Physical Settlement applies, a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(ii) if Cash Settlement applies, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or
(iii) if Combination Settlement applies, (i) a number of shares of Common Stock equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (ii) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period; provided, however, that, in lieu of delivering any fractional share of Common Stock otherwise due upon conversion, the Company shall pay cash based on (i) the Daily VWAP on the applicable Conversion Date (or, if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (ii) the Daily VWAP on the last VWAP Trading Day of the applicable Observation Period, in the case of Combination Settlement. The If a Holder converts more than one Note on a Conversion Date, then the consideration due upon such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the procedures and policies of the Depositary) be computed based on the total principal amount of Notes converted on such Conversion Date by that Holder.
(d) If Cash Settlement or Combination Settlement applies to the conversion of any Note, then the Company will determine the consideration due upon conversion thereupon promptly following the last VWAP Trading Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion Agent will have any duty to make any such determination.
(e) Except as set forth in Section 4.04, 4.06 and 4.07, the rightCompany shall deliver the consideration due upon conversion in respect of any Notes as follows: (i) if Cash Settlement or Combination Settlement applies, in its sole discretion and exercisable at its election on or before the third (or, if the T+2 Effective Date has occurred by sending notice the last VWAP Trading Day of the Observation Period for such conversion, the second) Business Day immediately after the last VWAP Trading Day of such exercise Observation Period; and (ii) if Physical Settlement applies, on or before the third (or, if the T+2 Effective Date has occurred by the Conversion Date for such conversion, the second) Business Day immediately after such Conversion Date for such conversion. However, if Physical Settlement applies to the Investors, to irrevocably fix the Settlement Method that will apply to all conversions conversion of Notes any Note with a Conversion Date that occurs is after the Regular Record Date immediately before the Stated Maturity, then the Company shall pay or deliver, as applicable, the consideration due upon such conversion no later than the Stated Maturity.
(f) Upon the conversion of any Notes, the Holder shall not be entitled to receive any separate cash payment for accrued and unpaid interest and Additional Interest, if any, except to the extent specified below. The Company’s payment or delivery, as the case may be, to such Holder of the consideration due upon conversion of such Notes shall be deemed to satisfy in full the Company’s obligation to pay (i) the principal amount of the Notes so converted and (ii) accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date shall be deemed, except to the extent specified below, to be paid in full rather than cancelled, extinguished or forfeited. In addition, if the consideration due upon conversion consists of both cash and shares of Common Stock, then accrued and unpaid interest that is deemed to be paid therewith shall be deemed to be paid first out of such cash. Notwithstanding the foregoing, if Notes are submitted for conversion after the close of business on a Regular Record Date for the payment of interest, Holders of such Notes at the close of business on such Regular Record Date shall receive the full amount of interest and Additional Interest, if any, payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes submitted for conversion between the close of business on any Regular Record Date and the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest and Additional Interest, if any, payable on the next Interest Payment Date on the principal amount of Notes to be converted; provided that no such payment need be made (i) 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, (ii) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note or (iii) if the Notes are surrendered for conversion on or after the Regular Record Date immediately preceding the Stated Maturity. If the exceptions described in the immediately preceding sentence do not apply and a Holder surrenders its Notes for conversion on a date that is not an Interest Payment Date, such notice is sent Holder shall not receive any interest for the period from the Interest Payment Date immediately preceding the Conversion Date or for any later period. The Company shall pay interest and Additional Interest, if any, at the Stated Maturity on all Notes converted after the Regular Record Date immediately preceding the Stated Maturity, and converting Holders shall not be required to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that pay to the Company is then permitted to elect; equivalent interest (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such noticeAdditional Interest, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Noteany) amounts.
Appears in 1 contract
Settlement Upon Conversion. Upon (a) Except as provided in Section 4.06(b) or Section 4.07(a), upon any conversion of this any Note, the Company will settle such conversion by paying or deliveringshall deliver to converting Holders, as applicable and as provided in this Section 3(c)respect of each $1,000 principal amount of Notes being converted, either at the Company’s election, in full satisfaction of the Company’s Conversion Obligation, (x1) shares of Common Stock, rounded down to the nearest whole share together with cash in lieu of fractional shares, if any (a “Physical Settlement”); , (y2) solely a cash as provided in Section 3(d)(i)(2) payment without any delivery of shares of Common Stock (a “Cash Settlement”); ) or (z3) a combination of cash and shares of Common Stock, rounded down to the nearest whole share together with cash in lieu of fractional shares, if any (a “Combination Settlement”). The Company will have , in each case, as set forth below (the right to elect the Settlement Method applicable to any amounts so deliverable upon conversion of this Note; providedthe Notes, howeverthe “Conversion Obligation”): For conversions:
(1) that occur prior to the close of business on the Business Day immediately preceding April 15, that: 2024 (i) subject to clause (ii) belowother than conversions in connection with a Redemption Notice), by the close of business on the Business Day following the Conversion Date, the Company will send notice shall notify converting Holders of such the relevant Settlement Method and, if the Company elects a Combination Settlement, the dollar amount of the Conversion Obligation (the “Cash Amount”) that will be settled in cash;
(2) that occur prior to the Investor no later than close of business on the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepaymentpreceding April 15, then 2024 in connection with a Redemption Notice, the Company will specifyshall notify converting Holders of the relevant Settlement Method and, if applicable, the related Cash Amount in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method Redemption Notice; and
(3) that will apply to all conversions of this Note with a Conversion Date that occurs occur on or after April 15, 2024, the Company shall notify all Holders of the relevant Settlement Method and, if applicable, the related date Cash Amount, by notice on or prior to the close of Optional Prepayment business on the Business Day immediately preceding April 15, 2024. All conversions for which the relevant Conversion Date occurs during the period from, and including, April 15, 2024 to the close of business on the second Scheduled Trading Day immediately preceding the Stated Maturity will be settled using the same Settlement Method. In addition, all conversions in connection with a particular Redemption Notice and before will be settled using the related Optional Prepayment Date; (iii) same Settlement Method. Except for any conversions described in the two preceding sentences, the Company will shall use the same Settlement Method for all conversions of Notes with occurring on the same Conversion Date; and (iv) if , but will not have any obligation to use the Company does not timely elect a same Settlement Method with respect to conversions that occur on different Conversion Dates. If the conversion of this NoteCompany does not specify a Settlement Method as set forth above, then Combination Settlement shall apply and, in such event or in the event that the Company specifies Combination Settlement but does not specify the Cash Amount, the Cash Amount used in the settlement calculation set forth in paragraph (d) below will be $1,000. Any such notice of a Settlement Method may not be revoked.
(b) If the Company has elected a Physical Settlement with respect to any Notes tendered for conversion, the Company shall deliver, for each $1,000 principal amount of Notes, a number of shares of Common Stock equal to the Conversion Rate, together with cash in lieu of fractional shares. Except as provided in Sections 4.06 and 4.07, the Company shall deliver such shares of Common Stock in book-entry format through the Depositary (and cash in lieu of fractional shares) on the second Business Day following the Conversion Date.
(c) If the Company has elected a Cash Settlement with respect to any Notes tendered for conversion, the Company shall deliver, for each $1,000 principal amount of Notes, a cash payment equal to the sum of the Daily Conversion Values for each Trading Day during the relevant Observation Period. Except as provided in Sections 4.06 and 4.07, the Company shall make such payment on the second Business Day following the last day of the applicable Observation Period.
(d) If the Company has elected or is deemed to have elected a Combination Settlement with respect to any Notes tendered for conversion, the Default Settlement Method (andCompany shall deliver, for the avoidance each $1,000 principal amount of doubtNotes, the failure to timely make such election will not constitute an Event sum of Default). The Company will have the right, in its sole discretion and exercisable at its election by sending notice of such exercise to Daily Settlement Amounts for each Trading Day during the Investors, to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Noterelevant Observation Period.
Appears in 1 contract
Sources: Indenture (Proofpoint Inc)
Settlement Upon Conversion. Upon any (a) Subject to Section 10.06, if a Note is tendered for conversion in accordance with this Article 10, then:
(1) unless the Conversion Date of this Notesuch conversion is on or after the Irrevocable Net Share Settlement Election Date, if any, the Company will settle shall, no later than the second (2nd) Scheduled Trading Day immediately after such Conversion Date, provide notice (the “Settlement Method Election Notice”) to the Holder of such Note and the Conversion Agent of whether the Conversion Settlement Consideration due upon such conversion by paying or delivering, as applicable and as provided in this Section 3(c), either (xshall be determined pursuant to Section 10.12(a)(2)(A) shares of Common Stock, rounded down to the nearest whole share (a “Physical Settlement”); (y) solely cash as provided in Section 3(d)(i)(2, Section 10.12(a)(2)(B) (a “Cash Settlement”); ) or (zSection 10.12(a)(2)(C) a combination of cash and shares of Common Stock, rounded down to the nearest whole share (a “Combination Settlement”). The Company will have , which notice shall also state, in the right case of Combination Settlement, the maximum amount of cash (excluding cash, if any, payable in lieu of any fractional share pursuant to elect Section 10.03) due upon such conversion per $1,000 principal amount of such Note (such maximum cash amount per $1,000 principal amount, the Settlement Method applicable to any conversion of this Note“Fixed Cash Amount”); provided, however, that: :
(i) subject to clause (ii) below, the Company will send notice of such Settlement Method to the Investor no later than the fifth Business Day immediately after such Conversion Date; (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specify, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all conversions of this Note with a Conversion Date that occurs on or after the related date of Optional Prepayment Notice and before the related Optional Prepayment Date; (iii) the Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date; and (ivA) if the Company does not timely elect is required to provide a Settlement Method Election Notice for such conversion pursuant to this Section 10.12(a)(1) and fails to do so in accordance with respect to the conversion of this NoteSection 10.12(a)(1), then the Company will be deemed to have elected timely delivered a Settlement Method Election Notice duly stating that the Default Settlement Method shall apply to such conversion (and, for the avoidance of doubt, the such failure shall be deemed not to timely make such election will not constitute be a Default or an Event of Default). The ;
(B) unless the Company will shall have theretofore made an Irrevocable Net Share Settlement Election, the rightCompany may, in its sole discretion and exercisable at its election by sending notice without the consent of such exercise any Holder, deliver, prior to the InvestorsFree Convertibility Trigger Date, to irrevocably fix a one-time notice (the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must be a Settlement Method that the Company is then permitted to elect; (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected); and (z) the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Note.“Free Convertibility Period
Appears in 1 contract
Settlement Upon Conversion. (a) Upon any a conversion of this NoteNotes, the Company will settle such conversion by paying may elect to pay or deliveringdeliver, as applicable and as provided in this Section 3(c)the case may be, either (x) shares of Common Stock, rounded down to the nearest whole share (a “Physical Settlement”); (yi) solely cash as provided in Section 3(d)(i)(2) (a “Cash Settlement”); , (ii) solely Common Shares, together with cash, if applicable, in lieu of any fractional Common Shares (“Physical Settlement”) or (ziii) a combination of cash and shares of Common Stock, rounded down to the nearest whole share Shares (a “Combination Settlement”) in order to satisfy its obligations to converting Noteholders (the “Conversion Obligation”). .
(b) The same Settlement Method shall be used in each of the following cases:
(i) all conversions occurring on or after December 15, 2016;
(ii) all conversions of Notes selected for redemption occurring on or after the date of issuance of the related Redemption Notice and prior to the related Redemption Date; and
(iii) all conversions occurring on the same Trading Day prior to December 15, 2016, provided however, that except as described in (i), (ii) and (iii) above, the Company will shall not have the right any obligation to elect the same Settlement Method applicable with respect to any conversion conversions occurring on different Trading Days. If the Company elects a Settlement Method in respect of this Note; provided, however, that: (i) subject to clause (ii) belowa Conversion Date, the Company will send shall provide notice (the “Settlement Notice”) to converting Holders through the Trustee of such Settlement Method to the Investor no later than the fifth second Business Day immediately after such following the related Conversion Date; Date (ii) if all or any portion of this Note is called for Optional Prepayment, then the Company will specifyor, in the related Optional Prepayment Notice sent pursuant to Section 1(b), the Settlement Method that will apply to all conversions case of this Note with a any Conversion Date that occurs occurring on or after (x) the date of issuance of a Redemption Notice and prior to the related date of Optional Prepayment Redemption Date, in such Redemption Notice and before the related Optional Prepayment Date; or (iiiy) the Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date; and (iv) if December 15, 2016, no later than December 15, 2016). If the Company does not timely elect a Settlement Method with in respect to the of a conversion of this NoteNotes, then the Company will it shall be deemed to have elected Physical Settlement in respect of the Default related Conversion Obligation.
(c) The Settlement Method Amount due upon conversion of the Notes shall be computed as follows:
(and, for i) if the avoidance of doubtCompany elects to satisfy its Conversion Obligation by Physical Settlement, the failure to timely make such election will not constitute an Event of Default). The Company will have the right, in its sole discretion and exercisable at its election by sending notice of such exercise shall deliver to the Investors, converting Holder a number of Common Shares equal to irrevocably fix the Settlement Method that will apply to all conversions product of Notes with a Conversion Date that occurs on or after the date such notice is sent to Investors; provided that (x) the Settlement Method so elected must aggregate principal amount of Notes to be a Settlement Method that the Company is then permitted to elect; converted, divided by $1,000 and (y) no such irrevocable election will affect any Settlement Method theretofore elected the Conversion Rate;
(or deemed ii) if the Company elects to be elected); and (z) satisfy its Conversion Obligation by Cash Settlement, the Default Settlement Method will automatically be deemed to be set Company shall pay to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions converting Holder in respect of each $1,000 principal amount of Notes with a being converted cash in an amount equal to the sum of the Daily Conversion Date that occurs on Values for each of the 20 consecutive Trading Days during the relevant Observation Period; and
(iii) if the Company elects to satisfy its Conversion Obligation by Combination Settlement, the Company shall pay or after deliver, as the date such notice is sent case may be, to Investors. For the avoidance converting Holder in respect of doubteach $1,000 principal amount of Notes being converted, such an irrevocable election, if made, will be effective without amount of cash and Common Shares equal to the need to amend this Notesum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the relevant Observation Period.
Appears in 1 contract
Sources: First Supplemental Indenture (KKR Financial Holdings LLC)