Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity], 2020, only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied. (i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued], 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the (i) has been met or (y) to verify the Company’s determination regarding such market price condition. (ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ], 2020 the Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing. (iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution. (iv) If a transaction or event that constitutes a Fundamental Change or a Make Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence. (v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sunedison, Inc.), Agreement and Plan of Merger (Vivint Solar, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity], 202020[ ], only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 202020[ ], at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued], 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
the applicable Conversion Price in effect on each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (ix) to determine whether the market price condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ], 2020 20[ ] the Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 202020[ ], a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vivint Solar, Inc.), Agreement and Plan of Merger (Sunedison, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes (if a portion, such that the principal amount of such Notes converted equals $1.00 or an integral multiple of $1.00) at an initial Conversion Rate of [ ] 86.95652173913043 shares of Common Stock per $100 1,000 of the sum of the aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) Notes, plus all accrued interest thereon and the Make-Whole Amount related thereto into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity], 2020, only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until the Close of Business on the second Scheduled Trading Business Day immediately preceding the stated Maturity Date regardless of whether Date; provided that the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued], 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ], 2020 the Trading Price per $100 principal amount of Notes on each Trading Day during a Holder’s Notes, plus all accrued interest thereon and any ten consecutive TradingMake-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation AgentWhole Amount related thereto, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence be converted must be such that the Trading Price per $100 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per not converted equals $100 principal amount 1.00 or an integral multiple of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing1.00.
(iiii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 45 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the average of the Closing Sale Price Prices of the Common Stock on for the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders (with a copy to the Trustee and Conversion Agent) at least 35 30 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(ivii) If a transaction or event that constitutes a Fundamental Change or a Make Whole Fundamental Change occurs prior occurs, to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will shall give notice to Holders (with a copy to the Trustee and Conversion Agent) of the anticipated effective date for such transaction or event not more than 50 Scheduled Trading Days nor less than 35 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 30 Scheduled Trading Days prior to the anticipated effective date, within one two Business Day Days of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) to determine whether a Fundamental Change or Make Whole Fundamental Change the condition described in this Section 4.01(b)(ii) has occurred or (y) to verify the Company’s determination regarding such occurrence or non-occurrencecondition.
(viii) Holders will have the right to surrender Notes for conversion if If the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice shall notify Holders (with a copy to Holders of the anticipated effective date for such transaction not less than 35 Trustee and Conversion Agent) at least 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event the condition described in this Section 4.01(b)(v4.01(b)(iii) has occurred or (y) to verify the Company’s determination regarding such condition. For the avoidance of doubt, any references to Common Stock described in this Section 4.01, including those in Section 4.01(c), shall give effect to, among other things, the provisions of Section 4.07.
(c) Notwithstanding anything herein to the contrary:
(i) The Company shall not effect any conversion of a corporate eventNote to Common Stock to the extent that, after giving effect to such conversion, ownership of shares of Common Stock owned by the Holder, or such Holder together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (any such person other than Holder, including any group of which Holder is a member, an “Additional Restricted Ownership Person”), would beneficially own in excess of the Restricted Ownership Percentage (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and any Additional Restricted Ownership Person shall include the number of shares of Common Stock issuable upon conversion of the sum of the principal amount of Notes plus accrued interest thereon plus any Make-Whole Amount applicable thereto with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted principal amount of Notes plus accrued interest thereon plus any Make-Whole Amount applicable thereto beneficially owned by such Holder or any Additional Restricted Ownership Person and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any Additional Restricted Ownership Person. Except as set forth in the preceding sentence, for purposes of this Section 4.01(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(ii) To the extent that the limitation contained in this Section 4.01(c)(i) applies, the determination of whether the Notes are convertible (in relation to other securities owned by such Holder together with any Additional Restricted Ownership Person) and of how much principal amount of Notes (plus accrued interest thereon plus any Make-Whole Amount related thereto) are convertible shall be in the sole discretion of such Holder, and the submission of a Conversion Notice shall be deemed to be such Holder’s determination of whether the applicable Notes may be converted (in relation to other securities owned by such Holder together with any Additional Restricted Ownership Person) and how much principal amount of Notes (plus accrued interest and any Make-Whole related thereto) are convertible, in each case subject to the Restricted Ownership Percentage. To ensure compliance with this restriction, each Holder will be deemed to represent to the Company each time it delivers a Conversion Notice that, to its knowledge, such Conversion Notice has not violated the restrictions set forth in this paragraph and neither the Trustee nor the Conversion Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4.01(c), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company or (iii) a more recent written notice by the Company or the transfer agent for the Company’s Common Stock setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Notes, by such Holder or its Additional Restricted Ownership Persons since the date as of which such number of outstanding shares of Common Stock was reported.
Appears in 2 contracts
Sources: Indenture (ProSomnus, Inc.), Indenture (ProSomnus, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] 88.5716 shares of Common Stock per $100 1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] 11.29 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii4.03(a)(iii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]September 15, 20202019, only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets]September 15, 20202019, at any time until the Close of Business on the second Scheduled Trading Business Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued]March 31, 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
the applicable Conversion Price in effect on each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (ix) to determine whether the condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]September 15, 2020 2019, the Trading Price per $100 1,000 principal amount of Notes on each Trading Day during any ten five consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day date and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five ten consecutive Trading Days following such Measurement Period. Whenever The Company shall determine whether the condition to conversion set forth in this Section 4.01(b)(ii) has been met, and the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writingwriting accordingly. The Upon written request of the Company, the Bid Solicitation Agent shall determine the Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each, and shall instruct such securities dealers to provide bid quotations upon the request of the Bid Solicitation Agent. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will shall so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 45 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the average of the Closing Sale Price Prices of the Common Stock on for the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 50 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution the condition described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distributioncondition.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]September 15, 20202019, a holder may surrender Notes for conversion at any time from and after the date that is 35 50 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will shall give notice to Holders of the anticipated effective date for such transaction or event not more than 70 Scheduled Trading Days nor less than 35 50 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 50 Scheduled Trading Days prior to the anticipated effective date, within one two Business Day Days of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) to determine whether a Fundamental Change or Make Whole Fundamental Change the condition described in this Section 4.01(b)(iv) has occurred or (y) to verify the Company’s determination regarding such occurrence or non-occurrencecondition.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th 50th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the The Company will give notice to shall notify Holders of the anticipated effective date for such transaction not less than 35 at least 50 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event the condition described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such condition.
(vi) If the Company calls all or a corporate eventportion of the Notes for redemption pursuant to Article 10, a Holder of Notes (whether or not the Notes owned by such Holder are subject to redemption) may convert such Notes at any time after, and including, the Redemption Notice Date and until the Close of Business on the Business Day immediately preceding the Redemption Date (or, if the Company fails to pay the Redemption Price on such Redemption Date, the date on which payment of the applicable Redemption Price is made). Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether the condition described in this Section 4.01(b)(vi) has occurred or (y) to verify the Company’s determination regarding such condition.
(c) If any of the conditions to conversion described under Sections 4.01(b)(i) through (b)(vi) are satisfied, the Company will so notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) and issue a press release containing the relevant information (and make the press release available on the Company’s website) by the Close of Business on the first Business Day on which the Notes have become convertible as a result thereof.
Appears in 1 contract
Sources: Indenture (Igi Laboratories, Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all the Securities, or any portion of its Notes such Securities in a Principal Amount which is $1,000 or a multiple of $1,000 thereof at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined then in accordance with Section 4.03(a)(ii)effect, (x) on or after February 19, 2014 through the close of business on the third Business Day immediately preceding the Stated Maturity or (y) prior to the Close close of Business business on the Business Day immediately preceding [three months prior to maturity]February 19, 20202014, but only upon the satisfaction of one or more any of the following conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until only during the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.periods set forth below:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]May 31, 2015 2007, if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price conditionConversion Price in effect on each applicable Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 Principal Amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 6.01(a)(ii), for each day of such period was less than 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on each such Trading Day, a Holder may surrender Notes for day. In connection with any conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. Howeverthis Section 6.01(a)(ii), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writingCompany; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 principal amount 1,000 Principal Amount of Notes Securities would be less than 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount 1,000 Principal Amount of Notes for a Trading Day Securities is greater than or equal to 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock and the applicable Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 Principal Amount of Securities will be deemed to be less than 97% of the product of the last reported sale price and the applicable conversion rate on such each day the Company fails to do so. If the Trading Day and (yPrice condition in the first sentence of this Section 6.01(a)(ii) has been met, the Conversion Rate in effect on such Trading DayCompany shall so notify the Holders. If, on at any Trading Day time after the Trading Price condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount 1,000 Principal Amount of Notes Securities is greater than or equal to 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on for such Trading Daydate, the Company will shall so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Business Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Company’s Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Business Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 1.06, to the Holders at least 35 25 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Securities are not otherwise convertible at such a distributiontime.
(iv) (A) If the Company is party to a transaction or event that constitutes a described in clause (2) of the definition of Fundamental Change or a Make Whole Fundamental Change occurs prior (without, for the avoidance of doubt, giving effect to the Close exception in the last paragraph of Business on the Business Day immediately preceding [ ]definition thereof relating to Publicly Traded Securities), 2020the Company shall notify Holders, a holder may surrender Notes for conversion in the manner provided in Section 1.06, at any time from and after the date that is 35 least 47 Scheduled Trading Days prior to the anticipated effective date for such transaction. Once the Company has given such notice, Holders may surrender Securities for conversion at any time until 15 calendar days after the actual effective date of the such transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is also constitutes a Fundamental Change, the Business Day immediately preceding until the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or eventlater). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this the Indenture, each Holder shall have the right, at such Holder’s 's option, to convert all its Notes, or any portion of its Notes at an initial Conversion Rate of [ ] shares of Common Stock per $100 aggregate such that the principal amount that remains Outstanding of Notes (equivalent to each Note that is not converted in full equals $1,000 or an initial Conversion Price integral multiple of approximately $[ ] per share of Common Stock) 1,000 in excess thereof, into the Settlement Amount determined in accordance with Section 4.03(a)(ii)) hereof, (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]September 15, 20202027, only upon satisfaction of one or more of the conditions described in Section 4.01(b)) hereof, and (y) on or after [insert date inserted in immediately preceding brackets]September 15, 20202027, at any time until prior to the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfiedhereof.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar fiscal quarter commencing after the quarter ending [the March 31, 2013 (and only during such fiscal quarter in which the notes were issued], 2015 quarter) if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price conditionapplicable Conversion Price in effect on each applicable Trading Day.
(ii) If, prior to A Holder may surrender Notes for conversion during the Close of Business on the five consecutive Business Day immediately preceding [three months before maturity ], 2020 the period after any five consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth in this Section 4.01(b)(ii), for each Trading Day of such Measurement Period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company or the Bid Solicitation Agent, as applicable. pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.011.01 hereof. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the The Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation determination in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing. If, on at any Trading Day time after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal condition to 98% of the product of conversion set forth in this
Section 4.01 (xb) the Closing Sale Price of the Common Stock on such Trading Day and (yii) the Conversion Rate in effect on such Trading Dayceases to be met, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent Trustee and the Conversion Agent (if other than the Trustee) in writingwriting on the first Trading Day on which such condition ceases to be met. None of the Trustee nor the Conversion Agent shall have any obligation to determine the Trading Price of the Notes.
(iii) If the Company elects to (x) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them for a period of not more than 45 calendar days after the date of such issuance to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, purchase shares of the Common Stock, at a price per share that is less than the Closing average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or (y) distribute to all or substantially all holders of the Common Stock the Company's assets, debt securities or rights to purchase the Company's securities, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date announcement for such distribution, other than the spin-off of Era Group Inc. announced by the Company on October 1, 2012, then, in either case, the Company must deliver notice of such issuance or distribution, and of the Ex-Dividend Date for such issuance or distribution, to the Holders at least 35 60 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s 's announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) Notes are not otherwise convertible at such time; provided, however, that Holders may not convert their Notes pursuant to determine whether a distribution described in this Section 4.01(b)(iii) has occurred if the Company provides that Holders shall participate, at the same time and upon the same terms as holders of the Common Stock, and as a result of holding the Notes, in the relevant issuance or distribution without having to convert their Notes as if they held a number of shares of the Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for such issuance or distribution multiplied by the principal amount (IIexpressed in thousands) to verify the Company’s determination regarding of Notes held by such a distributionHolder .
(iv) If (x) a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to (a) a consolidation, merger or binding share exchange or a saleexchange, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such eventassets or (b) a sale, Holders will have conveyance, transfer or lease of all or substantially all of the right assets of the Company and its Subsidiaries to surrender another person (other than any of the Company's Subsidiaries), the Notes may be surrendered for conversion at any time from and including or after the 35th date that is 55 Scheduled Trading Day Days prior to the anticipated effective date of such transaction to(or, and includingif later, the 40th Scheduled Trading Business Day following after the effective date Company gives notice of such transaction. To ) until the extent commercially reasonably practicableClose of Business (x) if such transaction or event is a Fundamental Change, on the Company will give notice to Holders of Business Day immediately preceding the anticipated Fundamental Change Purchase Date, and (y) otherwise, on the 35th Business Day immediately following the effective date for such transaction not less than 35 or event. The Company shall notify the Holders and the Trustee in writing of any such transaction or event:
(A) as promptly as practicable following the date the Company publicly announces such transaction but, if the Company has knowledge of, and has publicly announced, such transaction at least 60 Scheduled Trading Days prior to the anticipated effective date of such transaction, in no event less than 60 Scheduled Trading Days prior to such anticipated effective date; or,
(B) if the Company does not have knowledge of such transaction of, or it determineshas not publicly announced, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 60 Scheduled Trading Days prior to the anticipated effective datedate of such transaction, within one three Business Day Days of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will .
(v) If the Company be required calls the Notes for redemption pursuant to provide Article 10, Holders will have the right to surrender their Notes for conversion at any time prior to the Close of Business on the second Business Day immediately preceding the Redemption Date, even if the Notes are not otherwise convertible at such notice time, after which time the Holders will no longer have the right to Holders before convert their Notes on account of the earlier Company's delivery of (i) the actual effective date of such transaction and (ii) the earlier of such time as a Redemption Notice, unless the Company or its Affiliates (a) have publicly disclosed or acknowledged defaults in the circumstances giving rise payment of the Redemption Price. With respect to such anticipated transaction or (b) any Notes that are required to publicly disclose under applicable law or converted in connection with a Redemption Notice, the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor Company shall increase the Conversion Agent shall have any obligation (x) Rate for the Notes so surrendered for conversion by a number of Additional Shares to determine whether a corporate event described in this the extent provided under Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event4.07 hereof.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity], 2020, only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until following the Close Issue Date of Business the Securities hereunder through the close of business on the second Scheduled Trading Day immediately preceding prior to the stated Stated Maturity Date regardless to convert the Principal Amount of whether any such Securities, or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at the Conversion Rate then in effect, (x) on or after November 15, 2011, without regard to the conditions described in Section 4.01(bclauses (i) are satisfied.through (iv) below and (y) prior to November 15, 2011, only upon the satisfaction of any of the following conditions:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]March 31, 2015 2007 if the Closing Last Reported Sale Price of for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding Conversion Price in effect on such market price conditionlast Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 6.01(a)(i), for each day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the applicable Conversion Agent (in each case, if other than the Trustee) in writingRate. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company In connection with any conversion in accordance with the definition of Trading Price, along with the appropriate contact information for each. Howeverthis Section 6.01(a)(i), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writingCompany; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the applicable Conversion Agent (if other than the Trustee) in writingRate.
(iii) If In the event that the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share Fair Market Value, as reasonably determined by the Company’s Board of Directors in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 13.02, to the Holders at least 35 20 Scheduled Trading Days prior to the Ex-Dividend Ex Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Ex Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Securities are not otherwise convertible at such a distributiontime.
(iv) (A) If the Company is party to a transaction or event that constitutes a described in clause (2) of the definition of Fundamental Change or a Make Whole Fundamental Change occurs prior (without, for the avoidance of doubt, giving effect to the Close of Business on proviso set forth in the Business Day immediately preceding [ ]definition thereof relating to Publicly Traded Securities), 2020the Company shall notify Holders, a holder may surrender Notes for conversion in the manner provided in Section 13.02, at any time from and after the date that is 35 least 20 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which for such transaction. Once the Company gives notice of has given such transaction) notice, Holders may surrender Securities for conversion at any time until 20 calendar days after the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated actual effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day transaction. If a Fundamental Change of the date upon which type described in clause (1) or (5) in the Company receives noticedefinition thereof occurs, or otherwise becomes aware of, such transaction or event, unless Holders may surrender Securities for conversion at any time beginning on the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated actual effective date of such transaction or event (but in no event later than Fundamental Change until and including the date that is 20 calendar days after the actual effective date of such transaction or event). Notwithstanding or, if later, until the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or related Fundamental Change Repurchase Date.
(b) are required to publicly disclose under applicable law For purposes of this Section 6.01, and notwithstanding the definitions contained in Section 1.01, the term “Trading Day” shall mean a day during which (A) trading in the Common Stock generally occurs on the principal U.S. national or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share regional securities exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to market on which the Common Stock would be converted into cashis listed or admitted for trading, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it (B) there is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction Market Disruption Event and (iiC) a Last Reported Sale Price is available on the earlier of such time as the Company principal U.S. national or its Affiliates (a) have publicly disclosed regional securities exchange or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange market on which the Company’s equity Common Stock is then listed or admitted for trading. If the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation Common Stock (x) to determine whether or other security for which a corporate event described in Last Reported Sale Price must be determined for purposes of this Section 4.01(b)(v6.01) has occurred is not listed or (y) to verify the Company’s determination regarding such admitted for trading on a corporate eventU.S. national or regional securities exchange or market, then, for purposes of this Section 6.01, “Trading Day” shall mean a Business Day.
Appears in 1 contract
Sources: Indenture (Borland Software Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder of Notes shall have the right, at such Holder’s option, to convert all the principal amount of any such Notes, or any portion of its Notes such principal amount equal to $1,000 or an integral multiple of $1,000 thereof, at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of in effect on the Conversion Date for such Notes (equivalent subject to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined adjustment as provided in accordance with Section 4.03(a)(iithis Article 4), (x) prior to the Close close of Business business on the Business Day immediately preceding [three months prior to maturity]April 15, 20202024, only upon satisfaction of one or more of the conditions described in Section 4.01(b), clauses (1) through (5) below and (y) on or after [insert date inserted in immediately preceding brackets]April 15, 20202024, at any time until prior to the Close close of Business business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless August 15, 2024 irrespective of whether the conditions described in Section 4.01(bclauses (1) are satisfied.through (5) below:
(i1) A Prior to the close of business on the Business Day immediately preceding April 15, 2024, a Holder of Notes may surrender all or any a portion of its Notes for conversion during any calendar quarter (and only during such calendar quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]December 31, 2015 2019, if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on on, and including, the last Trading Day of the immediately preceding calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the applicable Conversion Price in effect on each applicable Trading Day as determined by the Company’s determination regarding such market price condition. The Company shall notify the Trustee and the Conversion Agent if the Notes become convertible in accordance with this Section 4.01(a)(1).
(ii2) If, prior Prior to the Close close of Business business on the Business Day immediately preceding [three months before maturity ]April 15, 2020 2024, a Holder of Notes may surrender its Notes for conversion during the five Business Day period after any five consecutive Trading Day period in which the Trading Price per $100 1,000 principal amount of Notes, as determined following a request by a Holder of Notes on in accordance with the procedures set forth in this Section 4.01(a)(2), for each Trading Day during any ten consecutive Trading-Day of such period (the “Measurement Period”) is was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading Day and (y) the Conversion Rate in effect on such “Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement PeriodPrice Condition”). Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the The Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes in accordance with this Section 4.01(a)(2) unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note Notes provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such Trading DayRate. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the then acting as Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such the next Trading Day and on each successive Trading Day until such Trading Day on which the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain (y) or, if the Conversion Rate in effect on such Trading DayCompany is then acting as Bid Solicitation Agent, the Company will does not obtain) bids when required or (if the Bid Solicitation Agent is not the Company) the Company so notify the Holders, the Trustee, instructs the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination, the Trading Price per $1,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Agent (if other Rate on each day the Company or Bid Solicitation Agent, as applicable, fails to do so. If the Trading Price Condition has been met, the Company shall so notify Holders, the Trustee and the Conversion Agent. If, at any time after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the Trustee) in writingproduct of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify Holders, the Trustee and the Conversion Agent.
(iii3) If the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants (other than in connection with a stockholder rights plan prior to the separation of the relevant rights) entitling them for a period of not more than 45 calendar days after the date of such issuance to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, purchase shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company (other than in connection with a stockholder rights plan prior to the separation of the relevant rights), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date announcement for such distribution, then, in either each case, the Company must deliver notice of such distribution, and shall notify the Holders of the Ex-Dividend Date for such distribution, to the Holders Notes at least 35 50 Scheduled Trading Days prior to the Ex-Dividend Date for such distributionissuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur). After Once the Company has delivered given such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close the close of Business business on the Business Day immediately preceding prior to such Ex-Dividend Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Notes are not otherwise convertible at such a distributiontime.
(iv4) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close occurs, regardless of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change Holder has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender require the Company to purchase the Notes for conversion pursuant to Article 3 hereof, or if the Company is a party to a consolidation, merger or merger, binding share exchange exchange, or a sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Changeassets, in each case case, pursuant to which the Common Stock would be converted into cash, securities or other property. In such eventassets, Holders will have the right to may surrender Notes for conversion at any time from and including after the 35th date which is 50 Scheduled Trading Day Days prior to the anticipated effective date of such transaction to, and including, until 35 Trading Days after the 40th Scheduled Trading Day following the actual effective date of such transactiontransaction (or, if later, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Purchase Date). To the extent commercially reasonably practicableThe Company shall notify Holders, the Conversion Agent (if other than the Trustee) and the Trustee as promptly as practicable following the date the Company will give notice to Holders of the anticipated effective date for publicly announces such transaction not transaction, but in no event (1) less than 35 50 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction in the case of transactions to which the Company is a party or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date (2) later than one Business Day after becoming aware of such transaction at least 35 Scheduled Trading Days prior in the case of transactions to the anticipated effective date, within one Business Day of the date upon which the Company receives noticeis not a party.
(5) If, at any time on or otherwise becomes awareafter August 20, 2022, the Company calls any or all of the Notes for redemption as described under Article 15 hereof, Holders of the Notes will have the right to convert their Notes at any time until the close of business on the Business Day immediately preceding the Redemption Date, after which time Holders will no longer have the right to convert their Notes on account of the Company’s delivery of notice of such transactionredemption, unless the Company determinesdefaults in the payment of the Redemption Price. If a Holder elects to convert its Notes in connection with a Redemption Notice issued by the Company, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before shall increase the earlier of (i) Conversion Rate for the actual effective date of such transaction and (ii) the earlier of such time Notes as set forth in Section 4.06. Failure by the Company to give any notice required by Section 4.01, or its Affiliates (a) have publicly disclosed any defect therein, shall not affect the legality or acknowledged validity of the circumstances giving rise to such anticipated relevant transaction or event.
(b) are required to publicly disclose under applicable law or Notes may not be converted after the rules close of any stock exchange business on which the Company’s equity is then listed second Scheduled Trading Day immediately preceding the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate eventStated Maturity.
Appears in 1 contract
Sources: Indenture (Proofpoint Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] 25.8705 shares of Common Stock per $100 1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] 38.65 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]March 1, 20202025, (x) only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets]March 1, 20202025, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued]June 30, 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
the applicable Conversion Price in effect on each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (ix) to determine whether the market price condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]March 1, 2020 2025 the Trading Price per $100 1,000 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]March 1, 20202025, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Make-Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s our equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Indenture (Sunedison, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] 39.6118 shares of Common Stock per $100 1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] 25.25 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]January 15, 20202022, (x) only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets]January 15, 20202022, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued]March 31, 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
the applicable Conversion Price in effect on each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (ix) to determine whether the market price condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]January 15, 2020 2022 the Trading Price per $100 1,000 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]January 15, 20202022, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Make-Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s our equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Indenture (Sunedison, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s its option, to convert all or at any portion time following the Issue Date of its Notes at an initial Conversion Rate the Securities hereunder through the close of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business business on the Business Day immediately preceding [three months prior to maturity], 2020, only upon satisfaction of one or more the date of the conditions described Stated Maturity of the Securities (except that, with respect to any Securities or portion thereof which shall be called for redemption, such right shall terminate, except as provided in Section 4.01(b), and (y) on 13.02 or after [insert date inserted in immediately preceding brackets], 2020Section 11.07, at any time until the Close close of Business business on the second Scheduled Trading Business Day immediately next preceding the stated Maturity Date regardless date fixed for redemption of whether such Securities or portion thereof unless the conditions described Company shall default in Section 4.01(bpayment due upon redemption thereof) are satisfied.to convert the Principal Amount of any such Securities, or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at the Conversion Price then in effect, if:
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which (beginning with the notes were issued], 2015 if fourth fiscal quarter of 2003) the Closing closing Sale Price of the Company’s Common Stock for at least 20 Trading Days (whether or not consecutive) during in the 30 Trading-Day period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more than exceeds 130% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price condition.Conversion Price of the Securities as in effect on that 30th Trading Day of that period; or
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ], 2020 the Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) Holder’s Security is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on called for redemption and such Trading Day and (y) the Conversion Rate in effect on Holder surrenders such Trading Day, a Holder may surrender Notes Security for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice prior to the Bid Solicitation Agent (if other than close of business on the Company) of Business Day prior to the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writingRedemption Date; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If If, during any period, the Securities are rated by either ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Rating Group and the credit rating initially assigned to the Securities by either such rating agency is reduced by two or more ratings levels; or
(iv) as provided in Section 13.01(b).
(b) In addition, in the event that:
(i) (A) the Company elects distributes to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, rights entitling such holders to purchase Common Stock at a price per share that is less than the Closing average Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuancedistribution; or (yB) cashthe Company distributes to all holders of Common Stock the Company’s assets, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment certain rights to purchase the Conversion Rate is made pursuant to Section 4.04(a))Company’s securities, which distribution has a per share value value, as determined by the Company’s Board of Directors, exceeding 1015% of the Closing last reported Sale Price of the Common Stock as of on the Trading Day immediately preceding the declaration date for such distribution, . then, in either each case, the Company must deliver notice notify, in writing, Holders of Securities of the occurrence of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders an event at least 35 Scheduled Trading Days 20 days prior to the Ex-Dividend Date for any such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close the close of Business business on the Business Day immediately preceding such the Ex-Dividend Date and (b) or the Company’s date of announcement by the Company that such issuance or the distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.; or
(ivii) If the Company becomes party to a transaction consolidation, merger or event that constitutes a Fundamental Change binding share exchange pursuant to which the Common Stock of the Company would be converted into cash, securities or a Make Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 2020other property, a holder Holder may surrender Notes the Securities for conversion at any time from and after the date that which is 35 Scheduled Trading Days 15 days prior to the anticipated effective date of the transaction or event (or, if later, until 15 days after the actual date on which of the transaction. If the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock of the Company would be converted into cash, securities or other property. In such event, Holders will have then at the effective time of the transaction, the right to surrender Notes for conversion at any time from convert the Securities into Common Stock shall be changed into a right to convert such Securities into the kind and including amount of cash, securities or other property which the 35th Scheduled Trading Day Holder would have received if the Holder had converted such Securities immediately prior to the anticipated effective date of such transaction. If the transaction to, and includingalso constitutes a Fundamental Change, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent Holder shall have any obligation (x) to determine whether a corporate event described the rights set forth in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event11.09.
Appears in 1 contract
Sources: Indenture (Flir Systems Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder the holder of any Note shall have the right, at such Holder’s option, right to convert all the principal amount of the Note, or any portion of its Notes at an initial Conversion Rate such principal amount which is a multiple of [ ] $1,000, into cash or a combination of cash and fully paid and non-assessable shares of Common Stock per (as such shares shall then be constituted) by surrender of the Note so to be converted in whole or in part, together with any required funds under the circumstances described in this Section 14.01, in the manner provided in Section 14.02. Each $100 aggregate 1,000 of principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of shall be convertible for cash and Common Stock) into , if any, in an amount equal to the Daily Settlement Amount determined Amount, payable as set forth in accordance with Section 4.03(a)(ii)14.04. The Notes shall be convertible prior to the close of business on the scheduled trading day immediately preceding September 15, 2036, only upon the occurrence of one of the following events:
(xi) prior to the Close of Business on the Business Day scheduled trading day immediately preceding [three months prior to maturity]September 15, 20202036, only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar fiscal quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued]December 31, 2015 2006, if the Closing Sale Price exceeds 120% of the Common Stock Conversion Price for at least 20 Trading Days (whether or not consecutive) during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the immediately preceding calendar quarter immediately preceding (it being understood for purposes of this Section 14.01(a)(i) that the calendar quarter Conversion Price in which effect at the conversion occurs, is more than 130% close of the
(i) has been met business on each of the 30 consecutive Trading Days should be used and such calculation shall give effect to any event referred to in Section 14.05 or (y) to verify the Company’s determination regarding 14.06 occurring during such market price condition.30 Trading Day period);
(ii) If, prior to during the Close of Business on the five Business Day period immediately preceding [three months before maturity ], 2020 after any five consecutive Trading Day period in which the Trading Price per $100 1,000 principal amount of the Notes on for each day of such five Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is was less than 98% of the product of the Closing Sale Price on the applicable date and the Conversion Rate; (xit being understood for purposes of this Section 14.01(a)(ii) that the Conversion Rate in effect at the close of business on each of the five consecutive Trading Days should be used and such calculation shall give effect to any event referred to in Section 14.05 or 14.06 occurring during such five Trading Day period). Upon satisfaction of the Trading Price condition set forth above the Company shall so notify the Noteholders and if at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of (a) the Closing Sale Price on such date and (b) the then-applicable Conversion Rate of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been metNotes, the Company shall so notify the HoldersNoteholders.
(iii) if such Note has been called for redemption, at any time on or after the Trustee and date the Bid Solicitation Agent and notice of redemption has been given until the close of business on the Business Day immediately preceding the redemption date; or
(iv) as provided in Section (b) of this Section 14.01. Upon receipt by the Conversion Agent of a demand for conversion from a Noteholder pursuant to clause (i) of this Section 14.01, the Conversion Agent shall inform the Company of such request and the Company shall thereupon furnish to the Conversion Agent an Officer’s Certificate stating whether the Notes are then convertible pursuant to clause (i) of this Section and setting forth in each casereasonable detail the Company’s basis for such determination. Upon receipt of such Officer’s Certificate, then the Conversion Agent shall promptly deliver written notice thereof to the Company (and, if the Conversion Agent is other than the Trustee) in writing, to the Trustee). The Trading Price In any event, the Company shall be determined by obligated at all times to determine whether the Company Notes shall be convertible as a result of the occurrence of an event specified in clause (i) of this Section 14.01. Whenever the Notes shall become convertible pursuant to this Section 4.01(b)(ii) 14.01, the Company or, at the Company’s written request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 16.03, and the definition of “Trading Price” set forth in Section 1.01Company shall also publicly announce such information and publish it on the Company’s web site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Company shall provide written notice to the Bid Solicitation Trustee (or other Conversion Agent (if other than the Company) of the three independent nationally recognized securities dealers selected appointed by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price under clause (a)(ii) of the Notes this Section 14.01 unless the Company has requested in writing such solicitation in writinga determination; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note holder provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on Rate. If such Trading Day. At such timeevidence is provided, the Company shall instruct the Bid Solicitation Agent request in writing to solicit market bid quotations for that the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to Trustee (or other Conversion Agent) determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if Rate. The Trustee shall not be liable for its determination of the Trading Price in compliance with the methodology set forth in this Section 14.01, except for any negligence or willful misconduct of the Trustee in making such determination. Notwithstanding any other than provision of this Section 14.01(a), on and after September 15, 2036, and until the Trustee) in writingclose of business on the scheduled trading date immediately preceding the maturity date of the Notes, the holder of any Note shall have the right to convert the principal amount of the Note, or any portion of the Note which is a multiple of $1000, at the Conversion Rate.
(iiib) If In addition, if:
(i) (A) the Company elects distributes to issue or distribute, as the case may be, to all or substantially all holders of the its Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, purchase (for a period expiring within 60 calendar 45 days after of the declaration record date for the determination of the stockholders entitled to receive such issuance, distribution) shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% average of the Closing Sale Price of for the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled ten Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such noticeimmediately preceding, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will but not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if laterincluding, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event distribution is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have first publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which announced by the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Indenture (Agco Corp /De)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] 37.2148 shares of Common Stock per $100 1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] 26.87 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]October 15, 20202019, (x) only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets]October 15, 20202019, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued]September 30, 2015 2014 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
the applicable Conversion Price in effect on each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (ix) to determine whether the market price condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]October 15, 2020 2019, the Trading Price per $100 1,000 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day NY\6371365.3 is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]October 15, 20202019, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Make-Whole Fundamental Change has occurred or (y) verify the Company’s 's determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less NY\6371365.3 than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s our equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Indenture (Sunedison, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Supplemental Indenture, each Holder shall have the right, at such Holder’s option, to convert all the Principal Amount of any such Securities, or any portion of its Notes such Principal Amount which is $1,000 or a multiple of $1,000 thereof at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined then in accordance with Section 4.03(a)(ii)effect, (x) on or after April 1, 2012 through the close of business on the third Business Day immediately preceding Stated Maturity and (y) prior to the Close close of Business business on the Business Day immediately preceding [three months prior April 1, 2012, but (solely in the case of a conversion pursuant to maturity], 2020, this clause (y)) only upon the satisfaction of one or more any of the following conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until only during the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.periods set forth below:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]September 30, 2015 2007, if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price conditionConversion Price in effect on each applicable Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 Principal Amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this (ii), for each day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the applicable Conversion Agent (in each case, if other than the Trustee) in writingRate. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company In connection with any conversion in accordance with the definition of Trading Price, along with the appropriate contact information for each. Howeverthis Section 5.01(a)(ii), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 principal amount 1,000 Principal Amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount 1,000 Principal Amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such Trading DayRate. If, on any Trading Day after If the condition Company does not so instruct the Bid Solicitation Agent to conversion set forth in this Section 4.01(b)(ii) has been metobtain bids when required, the Trading Price per $100 principal amount 1,000 Principal Amount of Notes is greater Securities shall be deemed to be less than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of and the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such Trading Day, each day the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writingfails to do so.
(iii) If In the event that the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading-Day period ending on the Business Day preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Board of Directors of the Company, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Business Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and in the manner provided in Section 106 of the Ex-Dividend Date for such distributionBase Indenture, to the Holders at least 35 45 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Date and (b) or the Company’s announcement that such distribution shall not take place, even if the Securities are not otherwise convertible at such time. A Holder may not exercise a right to convert Securities pursuant to this Section 5.01(a)(iii) if such Holder may participate in the issuance or distribution on the same terms as holders of Common Stock, as a result of holding the Securities, without conversion of the Securities. For the avoidance of doubt, the distribution of rights by the Company under a stockholder rights plan will not take place. Neither constitute one of the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in conditions set forth under this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution5(a)(iii).
(iv) (A) If the Company is party to a transaction or event that constitutes a described in clause (2) (without giving effect to the proviso in clause (2)) of the definition of Fundamental Change or a Make Whole (without, for the avoidance of doubt, giving effect to the exception in the penultimate paragraph of the definition of Fundamental Change occurs prior relating to Publicly Traded Securities), the Close Company shall notify Holders, in the manner provided in Section 106 of Business on the Business Day immediately preceding [ ]Base Indenture, 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 least 45 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which for such transaction. Once the Company gives notice of has given such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than Holders may surrender Securities for conversion at any time until 15 calendar days after the actual effective date of such transaction or event). Notwithstanding the foregoing(or, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of if such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute constitutes a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transactionrelated Fundamental Change Purchase Date). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Supplemental Indenture (Trex Co Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or at any portion time following the Issue Date of its Notes at an initial Conversion Rate the Securities hereunder through the close of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business business on the Business Day immediately preceding [three months prior to maturity]the Stated Maturity to convert the Principal Amount of any such Securities, 2020or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at a rate (“Conversion Rate”) then in effect, only upon satisfaction of one (x) on or more of after May 15, 2037, without regard to the conditions described in Section 4.01(b), clauses (i) through (v) below and (y) on or after [insert date inserted in immediately preceding brackets]prior to May 15, 20202037, at only upon the satisfaction of any time until of the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.following conditions:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]December 31, 2015 2007 if the Closing Last Reported Sale Price of for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar preceding fiscal quarter immediately preceding the calendar quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding Conversion Price in effect on such market price conditionlast Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 9.01(a)(ii), for each day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such (“Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement PeriodPrice Condition”). Whenever the condition to conversion set forth in For purposes of this Section 4.01(b)(ii) has been met9.01(a)(ii), the Company shall so notify the Holders, the Trustee and if the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition cannot reasonably obtain at least one bid for $5,000,000 Principal Amount of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three Securities from an independent nationally recognized securities dealers selected dealer as required by the Company in accordance with the definition of Trading Price, along then the Trading Price per $1,000 Principal Amount of Securities will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate. If the Company does not instruct the Bid Solicitation Agent to obtain bids when required, the trading price per $1,000 principal amount of the debentures will be deemed to be less than 98% of the product of the Last Reported Sale Price on each day that the Company fails to do so. In connection with the appropriate contact information for each. Howeverany conversion in accordance with this Section 9.01(a)(ii), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writingCompany; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such and the applicable Conversion Rate. If and when the Trading Day Price per $1,000 principal amount of Securities, for each day of the Measurement Period is less than 98% of the product of the Last Reported Sale Price of the Common Stock and (y) the applicable Conversion Rate in effect on such Trading DayRate, the Company will notify the Holders. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been metIf at anytime thereafter, the Trading Price per $100 principal amount 1,000 Principal Amount of Notes Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on for such Trading Daydate, the Company will so also notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If A Holder may surrender its Securities for conversion if the Company calls such Securities for redemption as provided in Article 7, at any time prior to the close of business on the Trading Day immediately preceding the Redemption Date, even if the Securities are not otherwise convertible at such time, after which time the Holder’s right to convert its Securities pursuant to this Section 9.01(a)(iii) will expire unless the Company defaults in the payment of the Redemption Price.
(iv) In the event that the Company elects to issue or distribute, as the case may be, to:
(A) distribute to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets of the Company, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as determined by the Company’s Board of Directors in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 1.06, to the Holders at least 35 25 Scheduled Trading Days prior to the Ex-Dividend Ex Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Ex Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Securities are not otherwise convertible at such a distributiontime.
(ivA) If the Company is party to a transaction or event that constitutes a Fundamental Change or a Make Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or described in clause (2) otherwise, on of the 40th Scheduled Trading Day immediately following definition of Fundamental Change (without giving effect to the effective date for such transaction or event. To proviso set forth in the extent commercially reasonably practicabledefinition thereof relating to Publicly Traded Securities), the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determinesshall notify Holders, in its commercially reasonable discretionthe manner provided in Section 1.06, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which for such transaction. Once the Company receives has given such notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than Holders may surrender Securities for conversion at any time until 35 calendar days after the actual effective date of such transaction (or, if such transaction also constitutes a Fundamental Change, the related Fundamental Change Purchase Date); and
(B) If a Fundamental Change of the type described in clause (1), (3) or event). Notwithstanding (4) of the foregoingdefinition thereof occurs, in no event will Holders may surrender Securities for conversion at any time beginning on the Company be required to provide actual effective date of such notice to Fundamental Change until and including the Holders before the earlier of (i) date that is 35 calendar days after the actual effective date of such transaction or event and (ii) or, if earlier, until the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or related Fundamental Change Purchase Date.
(b) are required to publicly disclose under applicable law For purposes of this Section 9.01, and notwithstanding the definition contained in Section 1.01, the term “Trading Day” shall mean a day during which (A) trading in the Common Stock generally occurs on the principal U.S. national or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share regional securities exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to market on which the Common Stock would be converted into cashis listed or admitted for trading, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it (B) there is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction Market Disruption Event and (iiC) a Last Reported Sale Price is available on the earlier of such time as the Company principal U.S. national or its Affiliates (a) have publicly disclosed regional securities exchange or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange market on which the Company’s equity Common Stock is then listed or admitted for trading. If the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation Common Stock (x) to determine whether or other security for which a corporate event described in Last Reported Sale Price must be determined for purposes of this Section 4.01(b)(v9.01) has occurred is not listed or (y) to verify the Company’s determination regarding such admitted for trading on a corporate eventU.S. national or regional securities exchange or market, then, for purposes of this Section 9.01, “Trading Day” shall mean a Business Day.
Appears in 1 contract
Sources: Indenture (Verisign Inc/Ca)
Right to Convert. (a) Subject to and upon Upon compliance with the provisions of this Indenture, each a Holder of Securities shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of its Notes such Securities, at an initial the applicable Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined then in accordance with Section 4.03(a)(ii)effect, (x) prior to the Close close of Business business on the Business Day immediately preceding [three months prior to maturity]April 15, 20202014, only upon satisfaction of one or more of the conditions described in Section 4.01(b), clauses (i) through (iv) below and (y) on or after [insert date inserted in immediately preceding brackets]April 15, 20202014, at any time until prior to the Close close of Business business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless July 15, 2014 irrespective of whether the conditions described in Section 4.01(bclauses (i) are satisfiedthrough (iv) below.
(i) A Prior to the close of business on the Business Day immediately preceding April 15, 2014, a Holder of Securities may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]September 30, 2015 2009 if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price conditionapplicable Conversion Price in effect on each applicable Trading Day.
(ii) If, prior Prior to the Close close of Business business on the Business Day immediately preceding [three months before maturity ]April 15, 2020 2014, a Holder of Securities may surrender its Securities for conversion during the five Business Day period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder of Securities in accordance with the procedures set forth in this Section 4.01(a)(ii), for each Trading Day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such (the “Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement PeriodPrice Condition”). Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the The Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities in accordance with this Section 4.01(a)(ii) unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note Securities provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock and the applicable Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 principal amount of the Securities will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate on such each day the Company fails to do so. If the Trading Day Price Condition has been met, the Company shall so notify Holders, the Trustee and (y) the Conversion Rate in effect on such Trading DayAgent. If, on at any Trading Day time after the condition to conversion set forth in this Section 4.01(b)(ii) Trading Price Condition has been met, the Trading Price per $100 1,000 principal amount of Notes Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on for such Trading Daydate, the Company will shall so notify the Holdersholders of the Securities, the Trustee, the Bid Solicitation Agent Trustee and the Conversion Agent (if other than the Trustee) in writingAgent.
(iii) If the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar 45 days after the declaration announcement date for of such issuance, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distribution, and shall notify the Holders of the Ex-Dividend Date for such distributionSecurities, to in the Holders manner provided in Section 11.2 hereof, at least 35 25 Scheduled Trading Days prior to the Ex-Dividend Date for such distributionissuance. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close the close of Business business on the Business Day immediately preceding prior to such Ex-Dividend Date and (b) or the Company’s announcement that such issuance or distribution will not take place, even if the Securities are not otherwise convertible at such time. Neither Notwithstanding the Trustee nor foregoing, a Holder of Securities may not convert its Securities under the provisions of this Section 4.01(a)(iii) if such Holder will participate in such issuance or distribution, at the same time and upon the same terms as a holder of Common Stock, as if such Holder held, for each $1,000 principal amount of Securities, a number of shares of Common Stock equal to the Conversion Agent shall have any obligation (I) Rate in effect immediately prior to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distributionEx-Dividend Date.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close occurs, regardless of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change Holder has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion require the Company to purchase the Securities pursuant to Article 3 hereof, or if the Company is a party to a consolidation, merger or merger, binding share exchange exchange, or a sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Changeassets, in each case case, pursuant to which the Common Stock would be converted into cash, securities or other property. In such eventassets, Holders will have the right to may surrender Notes Securities for conversion at any time from and including or after the 35th date which is 25 Scheduled Trading Day Days prior to the anticipated effective date of such transaction to, and including, until 35 Trading Days after the 40th Scheduled Trading Day following the actual effective date of such transactiontransaction (or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date). To The Company shall notify Holders and the extent commercially reasonably practicable, Trustee as promptly as practicable following the date the Company will give notice to Holders of the anticipated effective date for publicly announces such transaction not transaction, but in no event less than 35 25 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than it being understood and agreed that the actual effective date of such transaction). Notwithstanding the foregoing, in no event will public announcement by the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of any such transaction and (ii) or event shall satisfy in full the earlier Company’s obligation to so notify Holders of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or Securities).
(b) are required to publicly disclose under applicable law or Securities may not be converted after the rules close of any stock exchange business on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate eventsecond Scheduled Trading Day immediately preceding July 15, 2014.
Appears in 1 contract
Sources: Indenture (Regis Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all the principal amount of any such Securities, or any portion of its Notes such principal amount which is $1,000 or an integral multiple of $1,000 thereof at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined then in accordance with Section 4.03(a)(ii)effect, (x) prior to on or after April 15, 2029 through the Close close of Business business on the second Business Day immediately preceding [three months the Stated Maturity and (y) prior to maturity]April 15, 20202029, but only upon the satisfaction of one or more of the conditions described set forth in Section 4.01(b), clauses (i) through (v) below and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until only during the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.periods set forth below:
(i) A Prior to the close of business on the Business Day immediately preceding April 15, 2029, a Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]June 30, 2015 2009, if the Closing Last Reported Sale Price of for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding Conversion Price in effect on each such market price conditionTrading Day.
(ii) If, prior Prior to the Close close of Business business on the Business Day immediately preceding [three months before maturity ]April 15, 2020 2029, a Holder may surrender its Securities for conversion during the Trading Price per $100 principal amount of Notes on each Trading five Business-Day during period after any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 5.01(a)(ii), for each day of such Measurement Period was less than 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement PeriodRate. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the The Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities in accordance with this Section 5.01(a)(ii) unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on Rate. Promptly after receiving such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such and the Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Day Price per $1,000 principal amount of Securities will be deemed to be less than 97% of the product of the Last Reported Sale Price of the Common Stock and (y) the Conversion Rate on each day the Company fails to do so. If the Trading Price condition has been met the Company shall notify the Holders of the Securities in effect on such Trading Daythe manner provided in Section 1.06, the Trustee and the Conversion Agent. If, on at any Trading Day time after the Trading Price condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes Securities is greater than or equal to 9897% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will shall so notify the HoldersHolders of the Securities in the manner provided in Section 1.06, the Trustee, the Bid Solicitation Agent Trustee and the Conversion Agent (if other than the Trustee) in writingAgent.
(iii) If If, prior to the close of business on the Business Day immediately preceding April 15, 2029, the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Company’s Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distribution, and shall notify the Holders of the Ex-Dividend Date for such distributionSecurities, to in the Holders manner provided in Section 1.06, at least 35 30 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of 5:00 p.m., New York City time, on the Business Day immediately prior to such Ex-Dividend Date or the Company’s announcement that such distribution will not take place, even if the Securities are not otherwise convertible at such time.
(aiv) Close If, prior to the close of Business business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If April 15, 2029, a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior or is expected to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Dateoccur, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or merger, binding share exchange exchange, or a sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Changeassets, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such eventassets, Holders will have the right to may surrender Notes Securities for conversion at any time from from, and including including, the 35th 30th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled 35th Trading Day following the such effective date of such transactiontransaction or, if such transaction also constitutes a Fundamental Change and the Securities have become due and payable as provided in Article 8, until the close of business on the Business Day immediately preceding the date the Securities are due and payable. To Unless the extent commercially reasonably practicableCompany has provided notice pursuant to Section 4.01(b), the Company will give notice to notify the Holders of and the anticipated effective Trustee, in the manner provided in Section 1.06, as promptly as practicable following the date for the Company publicly announces such transaction not less transaction, but in no event fewer than 35 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction and on or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose before the anticipated effective date of such transaction at least 35 Scheduled fifth Trading Days prior to Day after the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding .
(v) If, prior to the foregoingclose of business on the Business Day immediately preceding April 15, in no event will 2029, the Company be required calls any Securities for redemption, then Holders may surrender Securities for conversion at any time prior to provide the close of business on the second Business Day immediately preceding the Redemption Date, even if the Securities are not otherwise convertible at such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or time.
(b) are required to publicly disclose under applicable law or Securities may not be converted after the rules close of any stock exchange business on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate eventsecond Business Day immediately preceding May 15, 2029.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this the Indenture, each Holder shall have the right, at such Holder’s option, to convert any or all of its Notes, or any portion of its Notes at an initial Conversion Rate of [ ] shares of Common Stock per $100 aggregate thereof, such that the principal amount that remains Outstanding of Notes (equivalent to each Note that is not converted in full equals $1,000 or an initial Conversion Price integral multiple of approximately $[ ] per share of Common Stock) 1,000 in excess thereof, into the Settlement Amount determined in accordance with Section 4.03(a)(ii)) hereof, (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]August 15, 20202021, only upon satisfaction of one or more of the conditions described in Section 4.01(b)) hereof, and (y) on or after [insert date inserted in immediately preceding brackets]August 15, 20202021, at any time until prior to the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfiedhereof.
(ia) A Prior to the Close of Business on the Business Day immediately preceding August 15, 2021, a Holder may surrender all or any a portion of its Notes for conversion during any calendar fiscal quarter commencing after the quarter ending [the June 30, 2017 (and only during such fiscal quarter in which the notes were issued], 2015 quarter) if the Closing Last Reported Sale Price per Common Share for each of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on and including the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of thethe applicable Conversion Price in effect on each applicable Trading Day.
(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior Prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]August 15, 2020 2021, a Holder may surrender all or a portion of its Notes for conversion during the five consecutive Business Day period immediately after any five consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth in this Section 4.01(b)(ii), for each Trading Day of such Measurement Period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock Shares on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company or the Bid Solicitation Agent, as applicable, pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.011.01 hereof. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the The Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writingdetermination; and the Company shall have no obligation to make such request (or, if the Company is the acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price of the NotesPrice) unless a Holder of a Note at least $5,000,000 aggregate principal amount of Notes provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock Shares on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for (if other than the Notes from three independent nationally recognized securities dealers selected by the Company for the Company Company) to determine (or, if the Company is the acting as Bid Solicitation Agent, the Company it shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock Shares on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, on at any Trading Day time after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal condition to 98% of the product of (xconversion set forth in this Section 4.01(b)(ii) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Dayceases to be met, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent Trustee and the Conversion Agent (if other than the Trustee) ). The Trustee shall have no obligation to determine the Trading Price of the Notes. For the avoidance of doubt, the failure to provide the notice referred to in writingthe immediately preceding sentence will not extend the five consecutive Business Day period during which the Notes will be convertible as described in this Section 4.01(b)(ii).
(iiiii) If the Company elects to issue or distribute, as the case may be, (x) issues to all or substantially all holders of the Common Stock to (x) Shares any rights, options or warrants entitling them for a period of not more than 45 calendar days after the date of such issuance to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the purchase Common StockShares, at a price per share that is less than the Closing average of the Last Reported Sale Prices of the Common Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or (y) distributes to all or substantially all holders of the Common Shares the Company’s assets, debt securities or rights to purchase the Company’s securities, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock Shares on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect announcement of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such issuance or distribution, and of the Ex-Dividend Date for such issuance or distribution, to the Holders at least 35 45 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. After the Company has delivered such notice, Holders may surrender all or a portion of their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Notes are not otherwise convertible at such a distributiontime.
(iviii) If the Company publicly announces a transaction or event that constitutes would, if consummated, constitute a Fundamental Change, a Make-Whole Fundamental Change or Share Exchange Event, or if any such transaction or event occurs (regardless of whether the Holders would have the right to require the Company to purchase their Notes pursuant to Article 3), the Company shall mail notice (a Make “Specified Corporate Transaction Notice”) of such specified corporate transaction or event to the Holders as promptly as practicable following the first public announcement by the Company of such transaction or event or, in the case that no public announcement is made, the occurrence of such transaction or event. Upon receiving notice or otherwise becoming aware of a transaction or event that would, if consummated, constitute a Fundamental Change, Make-Whole Fundamental Change occurs prior or Share Exchange Event, the Company will use commercially reasonable efforts to announce or cause the Close announcement of Business on such transaction or event in time to deliver the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion related Specified Corporate Transaction Notice at any time from and after the date that is 35 least 45 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, or if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable at least 45 Scheduled Trading Days prior to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective dateevent, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware ofbecome aware, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, ; provided that in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or and (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is Common Shares are then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have For any obligation to (x) determine whether a such potential Fundamental Change, Make-Whole Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify Share Exchange Event, the Company’s determination regarding such occurrence or non-occurrence.Specified Corporate Transaction Notice shall describe:
(vA) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger transaction or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to ;
(B) the anticipated effective date of such transaction toor event;
(C) the Holder’s right to convert their Notes in accordance with Section 4.01(b)(iv);
(D) the Conversion Rate in effect on the date the Company mails such notice;
(E) that an adjustment to the Conversion Rate is expected to be made pursuant to Section 4.05 as a result of such transaction or event and the formula for determining such adjustment;
(F) whether the relevant transaction or event is expected to constitute a Share Exchange Event, and includingand, if so, that the 40th Scheduled Notes will become convertible into Reference Property, subject to the settlement provisions of this Indenture;
(G) whether the relevant transaction or event is expected to constitute a Fundamental Change, and, if so, that Holders will have the right to require the Company to purchase their Notes pursuant to Article 3; and
(H) whether the relevant transaction or event is expected to constitute a Make-Whole Fundamental Change, and, if so, that the Conversion Rate will be increased under Section 4.06 for Notes converted in connection with such Make-Whole Fundamental Change. Upon the Company’s delivery of a Specified Corporate Transaction Notice, a Holder may surrender its Notes for conversion at any time until the 35th Trading Day immediately following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or event or, if the Company does not have knowledge of such transaction or it determinesevent constitutes a Fundamental Change, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of immediately preceding the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate eventrelated Fundamental Change Purchase Date.
Appears in 1 contract
Sources: Indenture (Golar LNG LTD)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or at any portion time following the Issue Date of its Notes at an initial Conversion Rate the Securities hereunder through the close of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business business on the Business Day immediately preceding [three months prior to maturity]the Stated Maturity to convert the Principal Amount of any such Securities, 2020or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at a rate (“Conversion Rate”) then in effect, only upon satisfaction of one (x) on or more of after September 1, 2037, without regard to the conditions described in Section 4.01(b), clauses (i) through (v) below and (y) on or after [insert date inserted in immediately preceding brackets]prior to September 1, 20202037, at only upon the satisfaction of any time until of the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.following conditions:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]March 31, 2015 2008 if the Closing Last Reported Sale Price of for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar preceding fiscal quarter immediately preceding the calendar quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding Conversion Price in effect on such market price conditionlast Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 9.01(a)(ii), for each day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such (“Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement PeriodPrice Condition”). Whenever the condition to conversion set forth in For purposes of this Section 4.01(b)(ii) has been met9.01(a)(ii), the Company shall so notify the Holders, the Trustee and if the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition cannot reasonably obtain at least one bid for $5,000,000 Principal Amount of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three Securities from an independent nationally recognized securities dealers selected dealer as required by the Company in accordance with the definition of Trading Price, along then the Trading Price per $1,000 Principal Amount of Securities will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate. If the Company does not instruct the Bid Solicitation Agent to obtain bids when required, the trading price per $1,000 principal amount of the debentures will be deemed to be less than 98% of the product of the Last Reported Sale Price on each day that the Company fails to do so. In connection with the appropriate contact information for each. Howeverany conversion in accordance with this Section 9.01(a)(ii), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writingCompany; and the Company shall have no obligation to make such request (or, if the Company is to the Bid Solicitation Agent, to determine the Trading Price of the Notes) Agent unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on and such Holder requests that the Company require the Bid Solicitation Agent to determine the Trading DayPrice. At Promptly after receiving such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such and the applicable Conversion Rate. If and when the Trading Day Price per $1,000 principal amount of Securities, for each day of the Measurement Period is less than 98% of the product of the Last Reported Sale Price of the Common Stock and (y) the applicable Conversion Rate in effect on such Trading DayRate, the Company will notify the Holders. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been metIf at anytime thereafter, the Trading Price per $100 principal amount 1,000 Principal Amount of Notes Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on for such Trading Daydate, the Company will so also notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If A Holder may surrender its Securities for conversion if the Company calls such Securities for redemption as provided in Article 7, at any time prior to the close of business on the Trading Day immediately preceding the Redemption Date, even if the Securities are not otherwise convertible at such time, after which time the Holder’s right to convert its Securities pursuant to this Section 9.01(a)(iii) will expire unless the Company defaults in the payment of the Redemption Price.
(iv) In the event that the Company elects to issue or distribute, as the case may be, to:
(A) distribute to all or substantially all holders of the Common Stock to (x) any rights, options rights or warrants entitling them to subscribe or securities convertible into or exchangeable or exercisable for or purchaseCommon Stock, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stockdistribution, at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock Shares of Capital Stock of the Company, evidences or indebtedness or other assets or property, which distribution has a per share value, as determined by the Company’s Board of Directors in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 1.06, to the Holders at least 35 25 Scheduled Trading Days prior to the Ex-Dividend Ex Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Ex Date and (b) or the Company’s announcement that such issuance or distribution will not take place, even if the Securities are not otherwise convertible at such time. Neither Notwithstanding the Trustee nor foregoing, no Holder may convert its Securities pursuant to this Section 9.01(iv) if, as a result of holding the Securities, such Holder will participate in such distribution without conversion as if such Holder held a number of shares of Common Stock equal to the Conversion Agent shall have any obligation Rate multiplied by the aggregate Principal Amount (Iexpressed in thousands) of the Securities to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify be converted by such Holder, and otherwise on the Company’s determination regarding such a distributionsame basis as holders of the Common Stock.
(ivA) If the Company is party to a transaction or event that constitutes a described in clause (2) of the definition of Fundamental Change or a Make Whole Fundamental Change occurs prior (without giving effect to the Close proviso set forth in the definition thereof relating to Publicly Traded Securities), the Company shall notify Holders, in the manner provided in Section 1.06, by the later of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion (1) at any time from and after the date that is 35 least 30 Scheduled Trading Days prior to the anticipated effective date of for such transaction and (2) the transaction or event (or, if later, first Trading Day after the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders obtains actual knowledge of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if transaction. Once the Company does not have knowledge of has given such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than Holders may surrender Securities for conversion at any time until 35 calendar days after the actual effective date of such transaction (or, if such transaction also constitutes a Fundamental Change, the related Fundamental Change Repurchase Date); and
(B) If a Fundamental Change of the type described in clause (1), (3) or event). Notwithstanding (4) of the foregoingdefinition thereof occurs, in no event will Holders may surrender Securities for conversion at any time beginning on the Company be required to provide actual effective date of such notice to Fundamental Change until and including the Holders before the earlier of (i) date that is 35 calendar days after the actual effective date of such transaction or event and (ii) or, if earlier, until the earlier related Fundamental Change Repurchase Date. The initial Conversion Rate is set forth on the Form of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or Reverse of Security in Section 2.03 of this Indenture.
(b) are required to publicly disclose under applicable law For purposes of this Section 9.01, and notwithstanding the definition contained in Section 1.01, the term “Trading Day” shall mean a day during which (A) trading in the Common Stock generally occurs on the principal U.S. national or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share regional securities exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to market on which the Common Stock would be converted into cashis listed or admitted for trading, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it (B) there is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction Market Disruption Event and (iiC) a Last Reported Sale Price is available on the earlier of such time as the Company principal U.S. national or its Affiliates (a) have publicly disclosed regional securities exchange or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange market on which the Company’s equity Common Stock is then listed or admitted for trading. If the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation Common Stock (x) to determine whether or other security for which a corporate event described in Last Reported Sale Price must be determined for purposes of this Section 4.01(b)(v9.01) has occurred is not listed or (y) to verify the Company’s determination regarding such admitted for trading on a corporate eventU.S. national or regional securities exchange or market, then, for purposes of this Section 9.01, “Trading Day” shall mean a Business Day.
Appears in 1 contract
Sources: Indenture (Microchip Technology Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or at any portion time following the Issue Date of its Notes at an initial Conversion Rate the Securities hereunder through the close of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business business on the Business Day immediately preceding [three months prior to maturity]the Stated Maturity to convert the Principal Amount of any such Securities, 2020or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at a rate (“Conversion Rate”) then in effect, only upon satisfaction of one (x) on or more of after December 15, 2036, without regard to the conditions described in Section 4.01(b), clauses (i) through (v) below and (y) on or after [insert date inserted in immediately preceding brackets]prior to December 15, 20202036, at only upon the satisfaction of any time until of the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.following conditions:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]June 30, 2015 2007 if the Closing Last Reported Sale Price of for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the Company’s determination regarding Conversion Price in effect on such market price conditionlast Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 9.01(a)(ii), for each day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the applicable Conversion Agent (in each case, if other than the Trustee) in writingRate. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company In connection with any conversion in accordance with the definition of Trading Price, along with the appropriate contact information for each. Howeverthis Section 9.01(a)(ii), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writingCompany; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the applicable Conversion Agent (if other than the Trustee) in writingRate.
(iii) If A Holder may surrender its Securities for conversion if the Company calls such Securities for redemption as provided in Article 7, at any time prior to the close of business on the Trading Day immediately preceding the Redemption Date, after which time the Holder’s right to convert its Securities pursuant to this Section 9.01(a)(iii) will expire unless the Company defaults in the payment of the Redemption Price.
(iv) In the event that the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets of the Company, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as determined by the Company’s Board of Directors in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 1.06, to the Holders at least 35 25 Scheduled Trading Days prior to the Ex-Dividend Ex Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Ex Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Securities are not otherwise convertible at such a distributiontime.
(ivA) If the Company is party to a transaction or event that constitutes a described in clause (2) of the definition of Fundamental Change or a Make Whole Fundamental Change occurs prior (without giving effect to the Close of Business on proviso set forth in the Business Day immediately preceding [ ]definition thereof relating to Publicly Traded Securities), 2020the Company shall notify Holders, a holder may surrender Notes for conversion in the manner provided in Section 1.06, at any time from and after the date that is 35 least 25 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which for such transaction. Once the Company gives notice of has given such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than Holders may surrender Securities for conversion at any time until 25 calendar days after the actual effective date of such transaction (or, if such transaction also constitutes a Fundamental Change, the related Fundamental Change Purchase Date).
(B) If a Fundamental Change of the type described in clause (1) or event). Notwithstanding (3) in the foregoingdefinition thereof occurs, in no event will Holders may surrender Securities for conversion at any time beginning on the Company be required to provide actual effective date of such notice to Fundamental Change until and including the Holders before the earlier of (i) date that is 30 calendar days after the actual effective date of such transaction or event and (ii) or, if earlier, until the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or related Fundamental Change Purchase Date.
(b) are required to publicly disclose under applicable law For purposes of this Section 9.01, and notwithstanding the definition contained in Section 1.01, the term “Trading Day” shall mean a day during which (A) trading in the Common Stock generally occurs on the principal U.S. national or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share regional securities exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to market on which the Common Stock would be converted into cashis listed or admitted for trading, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it (B) there is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction Market Disruption Event and (iiC) a Last Reported Sale Price is available on the earlier of such time as the Company principal U.S. national or its Affiliates (a) have publicly disclosed regional securities exchange or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange market on which the Company’s equity Common Stock is then listed or admitted for trading. If the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation Common Stock (x) to determine whether or other security for which a corporate event described in Last Reported Sale Price must be determined for purposes of this Section 4.01(b)(v9.01) has occurred is not listed or (y) to verify the Company’s determination regarding such admitted for trading on a corporate eventU.S. national or regional securities exchange or market, then, for purposes of this Section 9.01, “Trading Day” shall mean a Business Day.
Appears in 1 contract
Sources: Indenture (Xilinx Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] 25.8705 shares of Common Stock per $100 1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] 38.65 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]March 1, 20202023, (x) only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets]March 1, 20202023, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued]June 30, 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the
the applicable Conversion Price in effect on each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (ix) to determine whether the market price condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]March 1, 2020 2023 the Trading Price per $100 1,000 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]March 1, 20202023, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Make-Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s our equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Indenture (Sunedison, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all the principal amount of any such Notes, or any portion of its Notes such principal amount which is $1,000 or an integral multiple of $1,000 thereof at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined then in accordance with Section 4.03(a)(ii)effect, (x) any time on or after March 15, 2014 and prior to the Close close of Business business on the Business third Scheduled Trading Day immediately preceding [three months the Maturity Date and (y) prior to maturity]the close of business on the business day immediately preceding March 15, 20202014, but only upon the satisfaction of one or more of the conditions described set forth in Section 4.01(b), clauses (i) through (iv) below and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until only during the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.periods set forth below:
(i) A Prior to the close of business on the Business Day immediately preceding March 15, 2014, a Holder may surrender all or any a portion of its Notes for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]October 3, 2015 2009, if the Closing Last Reported Sale Price of the Common Stock for at least 20 twenty (20) Trading Days (whether or not consecutive) during the period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than 130or equal to 120% of the
(i) has been met or (y) to verify the Company’s determination regarding such market price conditionConversion Price in effect on each applicable Trading Day.
(ii) If, prior Prior to the Close close of Business business on the Business Day immediately preceding [three months before maturity ]March 15, 2020 2014, a Holder may surrender all or a portion of its Notes for conversion during the Trading Price per $100 principal amount of Notes on each Trading five (5) Business-Day during period after any ten (10) consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth in this Section 15.01(a)(ii), for each day of such Measurement Period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on each such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the The Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes in accordance with this Section 15.01(a)(ii) unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading DayRate. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, Rate. If the Company will does not so notify the Holders, the Trustee, instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Agent (if other Rate on each day the Company fails to do so. If the Trading Price condition has been met, the Company shall notify the Holders in the manner provided in Section 15.11, the Trustee and the Conversion Agent. If, at any time after the Trading Price condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the Trustee) product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date the Company shall so notify the Holders of the Notes in writingthe manner provided in Section 15.11, the Trustee and the Conversion Agent.
(iii) If If, prior to the close of business on the Business Day immediately preceding March 15, 2014, the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options rights or warrants entitling them to subscribe for or purchase, for a period expiring within 60 of not more than sixty (60) calendar days after the declaration announcement date for of such issuance, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the ten (10) consecutive Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date announcement for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 15.11, to the Holders at least 35 thirty-five (35) Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Notes are not otherwise convertible at such a distributiontime.
(iv) If If, prior to the close of business on the Business Day immediately preceding March 15, 2014, a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close occurs, regardless of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change Holder has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender require the Company to purchase the Notes for conversion under Section 16.01, or if the Company is a party to a consolidation, merger or merger, binding share exchange exchange, or a sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Changeassets, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such eventassets, Holders will have the right to may surrender Notes for conversion at any time from and including or after the 35th thirty-fifth (35th) Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled fortieth (40th) Trading Day following the actual effective date of such transactiontransaction or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Purchase Date. To The Company will use all commercially reasonable efforts to notify the extent commercially reasonably practicableHolders and the Trustee, in the manner provided in Section 15.11, as promptly as practicable following the date the Company will give notice to Holders of the anticipated effective date for publicly announces such transaction not transaction, but in no event less than 35 thirty-five (35) Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or .
(b) are required to publicly disclose under applicable law or Notes may not be converted after the rules close of any stock exchange business on which the Company’s equity is then listed third Scheduled Trading Day immediately preceding the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate eventMaturity Date.
Appears in 1 contract
Sources: Indenture (Claiborne Liz Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity], 2020, only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets], 2020, at any time until following the Close Issue Date of Business the Securities hereunder through the close of business on the second Scheduled Trading Day immediately preceding prior to the stated Stated Maturity Date regardless to convert the Principal Amount of whether any such Securities, or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at the Conversion Price then in effect, (x) on or after June 15, 2011, without regard to the conditions described in Section 4.01(bclauses (i) are satisfied.through (iv) below and (y) prior to June 15, 2011, only upon the satisfaction of any of the following conditions:
(i) A Holder may surrender all or any a portion of its Notes Securities for conversion during any calendar fiscal quarter (and only during such fiscal quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]September 30, 2015 2006 if the Closing Last Reported Sale Price of for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more greater than 130or equal to 120% of the
(i) has been met or (y) to verify the Company’s determination regarding Conversion Price in effect on such market price conditionlast Trading Day.
(ii) If, prior to A Holder may surrender its Securities for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 the period after any 10 consecutive Trading Price per $100 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 6.01(a)(i), for each day of such period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the applicable Conversion Agent (in each case, if other than the Trustee) in writingRate. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company In connection with any conversion in accordance with the definition of Trading Price, along with the appropriate contact information for each. Howeverthis Section 6.01(a)(i), the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes Securities unless requested by the Company has requested such solicitation in writingCompany; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes Securities would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the applicable Conversion Rate. Promptly after receiving such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes Securities beginning on such the next Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day Securities is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the applicable Conversion Agent (if other than the Trustee) in writingRate.
(iii) If In the event that the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants rights entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuanceof the distribution, shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day preceding the announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share Fair Market Value, as reasonably determined by the Company’s Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately day preceding the declaration date for such distribution, then, in either each case, the Company must deliver notice of such distributionshall notify the Holders, and of in the Ex-Dividend Date for such distributionmanner provided in Section 13.02, to the Holders at least 35 Scheduled Trading Days prior to the Ex-Dividend Ex Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes Securities for conversion at any time until the earlier of (a) Close of Business 5:00 p.m., New York City time, on the Business Day immediately preceding prior to such Ex-Dividend Ex Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Notes are not otherwise convertible at such a distributiontime.
(ivA) If the Company is party to a transaction or event that constitutes a Fundamental Change or a Make Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or described in clause (2) otherwiseof the definition of Fundamental Change (without, on for the 40th Scheduled Trading Day immediately following avoidance of doubt, giving effect to the effective date for such transaction or event. To proviso set forth in the extent commercially reasonably practicabledefinition thereof relating to Publicly Traded Securities), the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determinesshall notify Holders, in its commercially reasonable discretionthe manner provided in Section 13.02, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which for such transaction. Once the Company receives has given such notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than Holders may surrender Securities for conversion at any time until 35 calendar days after the actual effective date of such transaction or event(or, if such transaction also constitutes a Fundamental Change, the related Fundamental Change Purchase Date). Notwithstanding If a Fundamental Change of the foregoingtype described in clause (1) or (5) in the definition thereof occurs, in no event will Holders may surrender Securities for conversion at any time beginning on the Company be required to provide actual effective date of such notice to Fundamental Change until and including the Holders before the earlier of (i) date that is 30 calendar days after the actual effective date of such transaction or event and (ii) or, if later, until the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or related Fundamental Change Purchase Date.
(b) are required to publicly disclose under applicable law or For purposes of this Section 6.01, and notwithstanding the rules of any stock exchange on which definitions contained in Section 1.01, the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent following terms shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.meanings indicated:
Appears in 1 contract
Sources: Indenture (Macrovision Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of [ ] 133.3333 shares of Common Stock per $100 1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $[ ] 7.50 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]April 2, 20202018, (x) only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after [insert date inserted in immediately preceding brackets]April 2, 20202018, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.
(i) A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter ending [the fiscal quarter in which the notes were issued], 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130120% of thethe applicable Conversion Price in effect on
(i) has been met or (y) to verify the Company’s determination regarding such market price condition.
(ii) If, prior to the Close of Business on the Business Day immediately preceding [three months before maturity ]April 2, 2020 2018 the Trading Price per $100 1,000 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $100 1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.
(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 35 30 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]April 2, 20202018, a holder may surrender Notes for conversion at any time from and after the date that is 35 30 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 30 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Make-Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th 30th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 30 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s our equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.
Appears in 1 contract
Sources: Indenture (Sunedison, Inc.)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Supplemental Indenture, each Holder of Notes shall have the right, at such Holder’s option, to convert all the principal amount of any such Notes, or any portion of its Notes such principal amount equal to $1,000 or an integral multiple of $1,000, at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of in effect on the Conversion Date for such Notes (equivalent to an initial Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined subject to, and in accordance with with, the settlement provisions of Section 4.03(a)(ii4.02, the “Conversion Obligation”), (x) prior to the Close close of Business business on the Business Day immediately preceding [three months prior to maturity]August 1, 20202017, only upon satisfaction of one or more of the conditions described in Section 4.01(b), clauses (i) through (iv) below and (y) on or after [insert date inserted in immediately preceding brackets]August 1, 20202017, at any time until prior to the Close close of Business business on the second Scheduled Trading Day immediately preceding the stated Stated Maturity Date regardless irrespective of whether the conditions described in Section 4.01(bclauses (i) are satisfied.through (iv) below:
(i) A Prior to the close of business on the Business Day immediately preceding August 1, 2017, a Holder of Notes may surrender all or any portion of its Notes for conversion at any time during any calendar fiscal quarter commencing (and only during such fiscal quarter) after the quarter ending [the fiscal quarter in which the notes were issued]ending on June 30, 2015 2014 if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during in the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar fiscal quarter in which the conversion occurs, is more than exceeds 130% of the
the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each fiscal quarter commencing after the fiscal quarter ending on June 30, 2014 whether the Notes are convertible as a result of the price of the Common Stock, and if the Company determines that the Notes are convertible in accordance with this Section 4.01(a)(i), the Company shall notify the Trustee and the Conversion Agent (i) has been met or (y) to verify if other than the Company’s determination regarding such market price conditionTrustee).
(ii) If, prior Prior to the Close close of Business business on the Business Day immediately preceding [three months before maturity ]August 1, 2020 the Trading Price per $100 principal amount 2017, a Holder of Notes on each may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is in which the Trading Price per $1,000 principal amount of Notes (as determined following a request by a Holder of Notes in accordance with the procedures set forth in this Section 4.01(a)(ii)) for each Trading Day of the Measurement Period was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading Day (the “Trading Price Condition”), subject to compliance with the procedures and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion conditions set forth in this Section 4.01(b)(ii4.01(a)(ii) has been concerning the obligation to make a Trading Price determination, in which event the Trading Price Condition shall be met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes in accordance with this Section 4.01(a)(ii) unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price of the NotesNotes in accordance with this Section 4.01(a)(ii)) unless a Holder of a Note Notes provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on Rate. Promptly following receipt of such Trading Day. At such timeevidence, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the then acting as Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such the next Trading Day and on each successive Trading Day until such Trading Day on which the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on and the Conversion Rate. If, upon presentation of such reasonable evidence by the Holder, the Company does not cause the Bid Solicitation Agent to make such determination (or, if the Company is then acting as Bid Solicitation Agent, the Company does not make such determination), the Trading Day Price per $1,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and (y) the Conversion Rate in effect on each day the Company does not make such determination or cause the Bid Solicitation Agent to make such determination. If the Trading DayPrice Condition has been met, the Company will shall, as soon as practicable following the condition being met, so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price Condition has been met, the Bid Solicitation Agent Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such day, the Company shall so notify the holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writingby the same mechanism.
(iii) If If, prior to the close of business on the Business Day immediately preceding August 1, 2017, the Company elects to issue or distribute, as the case may be, to:
(A) distribute to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them for a period of not more than 60 calendar days from the record date for such distribution to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, purchase shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Price Prices of the Common Stock on over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such issuancedistribution; or
(B) distribute to all or substantially all holders of Common Stock assets, securities or rights to purchase securities of the Company not otherwise covered by clause (yA) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a))above, which distribution has a per share value value, as reasonably determined by the Board of Directors, exceeding 10% of the Closing average of the Last Reported Sale Price Prices of the Common Stock as of over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and shall notify the Holders of the Ex-Dividend Date for such distribution, to the Holders Notes at least 35 70 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After Once the Company has delivered given such notice, Holders may surrender all or any portion of their Notes for conversion at any time from, and including, the date the Company mails such notice until the earlier of (a) Close the close of Business business on the Business Day immediately preceding such Ex-Dividend Date and (b) or the date of the Company’s announcement that such issuance or distribution will shall not take place, even if the Notes are not otherwise convertible at such time. Neither No Holder may exercise its right to convert its Notes under the Trustee nor provisions of this Section 4.01(a)(iii) if such Holder otherwise may participate in any such distribution described above without conversion (based upon the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify Rate and upon the Company’s determination regarding such a distributionsame terms as holders of the Common Stock).
(iv) If Prior to the close of business on the Business Day immediately preceding August 1, 2017, if a transaction or event that constitutes a Fundamental Change (but without regard to the exclusion of transactions involving Publicly Traded Securities in the paragraph following clause (4) of that definition) or a Make Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding [ ]occurs, 2020, a holder Holders may surrender Notes for conversion at any time from and after the 70th Scheduled Trading Day prior to the anticipated Effective Date of such transaction until the 45th day following the actual Effective Date of such transaction (or, if earlier and to the extent applicable, the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date). The Company shall notify Holders of the anticipated Effective Date of the Fundamental Change or Make-Whole Fundamental Change, as the case may be, (i) as soon as practicable following the date that is 35 the Company publicly announces such transaction or event but in no event less than 70 Scheduled Trading Days prior to the anticipated effective date Effective Date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction ; or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, (ii) if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 70 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date Effective Date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transactiontransaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date Effective Date of such transaction and (ii) or event. The Company shall update its notice promptly if the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or Effective Date subsequently changes.
(b) are required Notwithstanding anything herein to publicly disclose under applicable law the contrary, Holders may surrender all or any portion of their Notes for conversion at any time beginning on August 1, 2017, until the rules close of any stock exchange business on which the Company’s equity is then listed second Scheduled Trading Day immediately preceding Stated Maturity irrespective of the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described conditions set forth in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.4.01(a)
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder of Notes shall have the right, at such Holder’s option, to convert all the principal amount of any such Notes, or any portion of its Notes such principal amount equal to $1,000 or a multiple of $1,000 thereof, at an initial the Conversion Rate of [ ] shares of Common Stock per $100 aggregate principal amount of Notes (equivalent to an initial in effect on the Conversion Price of approximately $[ ] per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii)Date for such Notes, (x) prior to the Close of Business on the Business Day immediately preceding [three months prior to maturity]December 15, 20202019, only upon satisfaction of one or more of the conditions described in Section 4.01(b), clauses (i) through (v) below and (y) on or after [insert date inserted in immediately preceding brackets]December 15, 20202019, at any time until prior to the Close close of Business business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless June 15, 2020 irrespective of whether the conditions described in Section 4.01(bclauses (i) are satisfied.through (v) below:
(i) A Prior to December 15, 2019, a Holder of Notes may surrender all or any a portion of its Notes for conversion during any calendar quarter (and only during such calendar quarter) commencing after the quarter ending [the fiscal quarter in which the notes were issued]September 30, 2015 2015, if the Closing Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more greater than or equal to 130% of the
(i) has been met or (y) to verify the applicable Conversion Price in effect on each applicable Trading Day as determined by the Company’s determination regarding such market price condition. The Company shall notify the Trustee and the Conversion Agent if the Notes become convertible in accordance with this Section 4.01(a)(i).
(ii) IfPrior to December 15, prior to 2019, a Holder of Notes may surrender its Notes for conversion during the Close of Business on the five Business Day immediately preceding [three months before maturity ], 2020 period after any five consecutive Trading Day period in which the Trading Price per $100 1,000 principal amount of Notes, as determined following a request by a Holder of Notes on in accordance with the procedures set forth in this Section 4.01(a)(ii), for each Trading Day during any ten consecutive Trading-Day of such period (the “Measurement Period”) is was less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Conversion Date (the “Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement PeriodPrice Condition”). Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the The Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes in accordance with this Section 4.01(a)(ii) unless requested by the Company has requested such solicitation in writing; Company, and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note Notes provides it and the Trustee Company with reasonable evidence that the Trading Price per $100 1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on such Trading DayRate. At such time, the The Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the then acting as Bid Solicitation Agent, the Company shall determine) the Trading Price per $100 principal amount of the Notes beginning on such the next Trading Day promptly following the receipt of such evidence and on each successive Trading Day until such Trading Day on which the Trading Price per $100 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $100 1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain (y) or, if the Conversion Rate in effect on such Trading DayCompany is then acting as Bid Solicitation Agent, the Company will does not obtain) bids when required or (if the Bid Solicitation Agent is not the Company) the Company so notify the Holders, the Trustee, instructs the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination, the Trading Price per $1,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Agent (if other Rate on each day the Company or Bid Solicitation Agent, as applicable, fails to do so. If the Trading Price Condition has been met, the Company shall so notify Holders, the Trustee and the Conversion Agent. If, at any time after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the Trustee) in writingproduct of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify Holders, the Trustee and the Conversion Agent.
(iii) If the Company elects to to:
(A) issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options rights or warrants entitling them for a period of not more than 45 calendar days after the date of such issuance to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, purchase shares of the Common Stock, Stock at a price per share that is less than the Closing average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of Common Stock assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date announcement for such distribution, then, in either each case, the Company must deliver notice of such distribution, and shall notify the Holders of the Ex-Dividend Date for such distribution, to the Holders Notes at least 35 45 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. After Once the Company has delivered given such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close the close of Business business on the Business Day immediately preceding prior to such Ex-Dividend Date and (b) or the Company’s announcement that such issuance or distribution will not take place. Neither , even if the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding Notes are not otherwise convertible at such a distributiontime.
(iv) If a transaction or event that constitutes a Fundamental Change or a Make Make-Whole Fundamental Change occurs prior to the Close occurs, regardless of Business on the Business Day immediately preceding [ ], 2020, a holder may surrender Notes for conversion at any time from and after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 35 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 35 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make Whole Fundamental Change Holder has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.
(v) Holders will have the right to surrender require the Company to purchase the Notes for conversion pursuant to Article 3 hereof, or if the Company is a party to a consolidation, merger or merger, binding share exchange exchange, or a sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Changeassets, in each case case, pursuant to which the Common Stock would be converted into cash, securities or other property. In such eventassets, Holders will have the right to may surrender Notes for conversion at any time from and including or after the 35th date which is 25 Scheduled Trading Day Days prior to the anticipated effective date of such transaction to, and including, until 35 Trading Days after the 40th Scheduled Trading Day following the actual effective date of such transactiontransaction (or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Purchase Date). To the extent commercially reasonably practicableThe Company shall notify Holders, the Conversion Agent (if other than the Trustee) and the Trustee as promptly as practicable following the date the Company will give notice to Holders of the anticipated effective date for publicly announces such transaction not transaction, but in no event (1) less than 35 25 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction in the case of transactions to which the Company is a party or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date (2) later than one Business Day after becoming aware of such transaction at least 35 Scheduled Trading Days prior in the case of transactions to the anticipated effective date, within one Business Day of the date upon which the Company receives noticeis not a party.
(v) If, at any time after June 20, 2018, the Company calls any or otherwise becomes awareall of the Notes for redemption as described under Article 15 hereof, Holders of the Notes will have the right to convert their Notes at any time until the close of business on the Business Day immediately preceding the Redemption Date, after which time Holders will no longer have the right to convert their Notes on account of the Company’s delivery of notice of such transactionredemption, unless the Company determinesdefaults in the payment of the Redemption Price. If a Holder elects to convert its Notes in connection with a Redemption Notice issued by the Company, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required shall:
(A) increase the conversion rate for the Notes as described under Section 4.06 hereof; and
(B) pay to provide such notice Holder an amount equal to Holders before accrued and unpaid interest (including additional amounts, if any) on the earlier of (i) Notes that are surrendered for conversion to, but excluding, the actual effective conversion date; provided that if such conversion date of such transaction occurs after a record date and (ii) on or prior to the earlier of such time as corresponding Interest Payment Date, the Company shall pay the interest due (including Additional Interest, if any) on that Interest Payment Date to the Holder of record on the relevant record date and no additional payment will be made pursuant to this clause. Failure by the Company to give any notice required by Section 4.01, or its Affiliates (a) have publicly disclosed any defect therein, shall not affect the legality or acknowledged validity of the circumstances giving rise to such anticipated relevant transaction or event.
(b) are required to publicly disclose under applicable law or Notes may not be converted after the rules close of any stock exchange business on which the Company’s equity is then listed second Scheduled Trading Day immediately preceding the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate eventStated Maturity.
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Sources: Indenture (Proofpoint Inc)