Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 7 contracts

Samples: Modification Agreement (Easylink Services Corp), Modification Agreement (Abi Zeid George), Modification Agreement (Easylink Services Corp)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a1) In case the Company shall ~~(i)~~ pay ~~a dividend in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes), (ii)~~ make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or other distribution ~~and shall become effective immediately after~~ on any class of capital stock of the ~~effective date~~ Company in Common Stock, the case of a subdivision or combination. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price ~~per share) less than~~ in effect at the ~~Current Market Price per share (as determined pursuant to subsection (f) below)~~ opening of ~~the Class A common stock~~ business on the ~~record~~ day following the date fixed for ~~determining the holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive such ~~rights, options~~ dividend or ~~warrants, the Conversion Price~~ other distribution shall be ~~adjusted so that the same shall equal the price determined~~ reduced by multiplying ~~the Conversion Price in effect immediately prior to~~ such ~~record date~~ conversion price by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of~~ at the close of business on the date fixed for such ~~record date plus~~ determination and the denominator shall be the sum of such number of shares ~~of Class A common stock which the aggregate offering price of~~ and the total number of shares ~~of Class A common stock so offered (~~constituting such dividend or other distribution, such reduction to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this ~~subsection~~ paragraph (b1), the number of shares of ~~Class A common stock~~ Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of ~~such Class A common stock~~Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of ~~Class A common stock~~ Common Stock held in the treasury of the Company. . (3) In ~~determining whether~~ case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants ~~entitle the holders~~ to subscribe for or purchase shares of ~~Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account~~ any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares class of capital stock ~~of Company~~ (other than ~~Class A common stock), evidences of indebtedness, cash,~~ any rights, options or warrants ~~entitling~~ that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the ~~holders thereof to subscribe for~~ Company or ~~purchase securities~~ any other Person) or other property (~~other than~~ including cash or assets or securities, but excluding (i) any rights, options or warrants ~~described~~ referred to in ~~subsection~~ paragraph (b2) ~~above) or other assets (including securities~~ of ~~Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below~~this Section, (ii) ~~dividends and distributions described~~ any dividend or distribution paid exclusively in ~~subsection (a) above and~~ cash, (iii) ~~distributions~~ any dividend or distribution referred to in ~~connection with the consolidation,~~ paragraph (1) of this Section and (iv) any consideration distributed in any merger or ~~transfer of assets covered by~~ consolidation to which Section ~~9.11)~~14.11 applies, ~~then in each such case~~ the ~~Conversion Price~~ conversion price shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) ~~below~~of this Section) of the ~~Class A common stock~~ Common Stock on the ~~record~~ date ~~mentioned below~~ fixed for such determination less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and described in a ~~board resolution~~Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of ~~indebtedness, shares of capital stock, cash, rights, options, warrants or other assets~~ indebtedness so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) Common Stock and the denominator shall be such ~~Current Market Price~~ current market price per share ~~(determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock on the Distribution Record Date~~Common Stock, such ~~reduction~~ adjustment to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date. (e5) ~~In case~~ The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a ~~tender offer~~ consolidation or ~~other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock~~ merger to which Section 14.11 applies) shall be ~~consummated, if an Excess Payment is made in respect~~ deemed to involve (a) a distribution of such ~~tender offer or~~ securities other ~~negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise,~~ than Common Stock to all holders of Common Stock (and the ~~Class A common stock made in cash (including any distributions~~ effective date of ~~cash out~~ such reclassification shall be deemed to be “the date fixed for the determination of ~~current or retained earnings of Company)~~ stockholders entitled to receive such distribution” and “the date fixed for such determination” within the ~~12 months preceding the date~~ meaning of ~~payment~~ paragraph (4) of ~~such current negotiated transaction consideration~~ this Section), and (b) a subdivision or ~~expiration of such current tender offer~~combination, as the case may ~~be (the "Purchase Date")~~be, ~~and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d)~~ of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of ~~Class A common stock~~ Common Stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by reclassification into the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~on the Purchase Date)~~ immediately thereafter (and the ~~denominator~~ effective date of such reclassification shall be deemed to be “the day upon which such ~~Current Market Price per share~~ subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (~~determined as provided in subsection (f~~3) of this Section). (6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the ~~Class A common stock~~ current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the ~~Purchase Date~~applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such ~~reduction~~ reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to ~~become effective immediately~~ trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith. (7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive. (8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. (9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest 1/10,000 of a share, as the case may be. (10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the ~~opening~~ date the decreased conversion price takes effect. (11) There shall be no adjustment to the conversion price upon the issuance of ~~business~~ rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the ~~day following~~ date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the ~~Purchase Date~~Conversion Rate on an equitable basis.

Appears in 6 contracts

Samples: Indenture (FMC Corp), Indenture (FMC Corp), Indenture (FMC Corp)

Adjustment of Conversion Price. ~~The Conversion Price~~ Unless otherwise specified as contemplated by Section 301 for Debt Securities of such series, the conversion price for Debt Securities convertible into Common Shares shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company shall (ix) pay a dividend ~~in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes), (ii)~~ make a distribution on Common Shares in ~~shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Shares, (~~iii~~y) subdivide ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Shares into a greater number of shares ~~of Class A common stock~~ or (ivz) combine ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Shares into a smaller number of ~~shares of Class A common stock~~shares, the ~~Conversion Price in effect immediately prior to~~ conversion price for the Debt Securities of such ~~action~~ series shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any such Security thereafter surrendered for conversion shall be entitled to receive the number of ~~shares of Class A common stock~~ Common Shares which he would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above had such ~~action had the Note~~ Security been converted immediately prior ~~thereto~~to the record date in the case of a dividend or the effective date in the case of subdivision or combination. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a ~~dividend or distribution~~ dividend, except as provided in subsection (h) below, and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ Common Shares entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase ~~shares of Class A common stock (or securities convertible into Class A common stock)~~ Common Shares at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Shares (as ~~determined pursuant to~~ defined for purposes of this subsection (fb) in subsection (e) below~~) of the Class A common stock on~~ ), at the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive such ~~rights, options~~ rights or warrants, the ~~Conversion Price~~ conversion price in affect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the number of ~~shares~~ Common Shares outstanding on the date of ~~Class A common stock outstanding as~~ issuance of ~~the close of business on~~ such ~~record date~~ rights or warrants plus the number of ~~shares of Class A common stock~~ Common Shares which the aggregate offering price of the total number of ~~shares of Class A common stock~~ Common Shares so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and the denominator of which ~~the denominator~~ shall be the number of ~~shares of Class A common stock~~ Common Shares outstanding on the date of issuance of such ~~record date~~ rights or warrants plus the number of additional ~~shares~~ Common Shares receivable upon exercise of ~~Class A common stock so offered for subscription~~ such rights or ~~purchase (or into which the convertible securities so offered are convertible)~~warrants. Such ~~adjustments~~ adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective ~~immediately~~ immediately, except as provided in subsection (h) below, after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any ~~rights, options~~ rights or warrants a entitle the ~~holders~~ Holders of the Debt Securities of such series to subscribe for or purchase ~~shares of Class A common stock~~ Common Shares at less than ~~the Current Market Price~~such current market price, and in determining the aggregate offering price of such ~~shares of Class A common stock~~Common Shares, there shall be taken into account any consideration received by the Company for such ~~rights, warrants,~~ rights or ~~options~~warrants plus the exercise price thereof, the value of such ~~consideration~~consideration or exercise price, as the case may be, if ~~any,~~ other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to all holders of ~~Class A common stock~~ Common Shares any shares of capital stock of the Company (other than ~~Class A common stock),~~ Common Shares) or evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or assets (excluding cash dividends or distributions paid from retained earnings of the Company) or rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase any of its securities (~~other than rights, options~~ excluding those rights or warrants ~~described~~ referred to in subsection (b) above) ~~or other assets~~ (~~including securities~~ any of ~~Persons other than Company but excluding (i) dividends or distributions paid exclusively~~ the foregoing being herein in ~~cash except as described in~~ this subsection (dc) ~~below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with~~ called the ~~consolidation, merger or transfer of assets covered by Section 9.11~~"Special Debt Securities"), ~~then~~ then, in each such ~~case~~ case, unless the ~~Conversion Price~~ Company elects to reserve such Special Debt Securities for distribution to the Holders of Debt Securities of such series upon the conversion so that any such Holder converting such Debt Securities will receive upon such conversion, in addition to the Common Shares to which such Holder is entitled the amount and kind of Special Debt Securities which such Holder would have received if such Holder had, immediately prior to the record date for the distribution of the Special Debt Securities, converted Debt Securities into Common shares, the conversion price shall be adjusted so that the same shall equal the price determined by ~~multiplying~~ the ~~Conversion Price~~ conversion price in ~~effect~~ affect immediately prior to the date of such distribution by a fraction the numerator of which ~~the numerator~~ shall be the ~~Current Market Price~~ current market price per share (~~determined~~ as ~~provided~~ defined for purpose of this subsection (c) in subsection (fe) below) of ~~the Class A common stock~~ Common Shares on the record date mentioned ~~below~~ above less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall, if made in good faith, be conclusive of the portion of the Special Debt Securities so distributed applicable to one Common Share, and the denominator of which shall be ~~conclusive evidence of such~~ the current market price per Common Shares (as defined in subsection (e) below); PROVIDED, HOWEVER, that in the event the then fair market value ~~and described in a board resolution~~(as so determined) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets~~ Special Debt Securities so distributed applicable to one ~~share of Class A common stock~~ Common Share is equal to or greater than the current market price per Common Shares (~~determined on the basis of the number of shares of the Class A common stock outstanding~~ as defined in subsection (e) below) on the record ~~date)~~date mentioned above, ~~and~~ in lieu of ~~which~~ the ~~denominator~~ foregoing adjustment, adequate provision shall be made so that each Holder of Debt Securities of such ~~Current Market Price~~ series shall have the right to receive the amount and kind of Special Debt Securities such holder would have received had he converted such Debt Securities immediately prior to the record date for the distribution of the ~~Class A common stock~~Special Debt Securities. Such adjustment shall become effective ~~immediately~~ immediately, except as provided in subsection (h) below, after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution~~. Notwithstanding~~ . (d) If, pursuant to subsection (b) or (c) above, the ~~foregoing~~number of Common Shares shall have been adjusted because the Company has declared a dividend, or made a distribution, on the outstanding Common Shares in ~~case~~ the form of any right or warrant to purchase securities of the Company, or the Company has issued any such right or warrant, then, upon the expiration of any such unexercised right or unexercised warrant, the conversion price shall ~~distribute rights~~forthwith be adjusted to equal the conversion price that would have applied had such right or warrant never been declared, ~~options~~ distributed or ~~warrants to subscribe for additional shares~~ issued. (e) For the purpose of ~~Company's capital stock (other than rights, options or warrants referred to in~~ any computation under subsection (b) above, the current market price per Common Share on any date shall be deemed to be the average of the reported last sales prices for the thirty consecutive Trading Days (as defined below) ~~("Rights") to all holders~~ commencing forty-five Trading Days before the date in question. For the purpose of ~~Class A common stock, Company may, in lieu of making~~ any ~~adjustment pursuant to the foregoing provisions of this~~ computation under subsection (c) ~~of Section 9.6 make proper provision so that~~ above, the ~~holder~~ current market price per Common Share on any date shall be deemed to be the average of the ~~Note who converts~~ reported last sales prices for the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to ten consecutive Trading Days before the date in question. The reported last sales price for ~~the distribution to the holders~~ each day (whether for purposes of ~~Rights of separate certificates evidencing such Rights~~ subsection (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (iib) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c)) shall be the reported last sales price, regular way, or, in case no sale takes place on such day, the average of ~~this Section~~the reported closing bid and asked prices, regular way, in either case as reported on the New York Shares Exchange Composite Tape or, if the Common Shares are not listed or admitted to trading an the New York Shares Exchange, on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if not listed or admitted to trading on any national securities on the National Market System of the National Association of Debt Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if the Common Shares are not quoted on such National Market System, the average of the closing bid and asked prices on such day in ~~an aggregate amount that~~the over-the-counter market as reported by NASDAQ or, ~~together~~ if bid and asked prices for the Common Shares on such day shall not have been reported through NASDAQ, the average of the bid and asked prices for such day as furnished by any New York Shares Exchange member firm regularly making a market in the Common Shares selected for such purpose by the Board of Directors or a committee thereof or, if no such quotations are available, the fair market value of the Common Shares as determined by a New York Shares Exchange Member firm regularly making a market in the Common Shares selected for such purpose by the Board of Directors or a committee thereof. As used herein, the term "Trading Day" with respect to the ~~sum of~~ Common Shares means (x) if the ~~aggregate amount of any~~ Common Shares are listed or admitted for trading on the New York Shares Exchange or another national securities exchange, a day on which the New York Stock Exchange or such other ~~distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed~~ national securities exchange is open for ~~determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c)~~ business or ~~(e) of this Section or this subsection (d) has been made plus~~ (y) if the ~~aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within~~ Common Shares are quoted on the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% National Market System of the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ NASDAQ, a day on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case trades may be ~~(the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been~~ made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.such

Appears in 4 contracts

Samples: Indenture (Bre Properties Inc /Md/), Indenture (Bre Properties Inc /Md/), Indenture (Bre Properties Inc /Md/)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time by the Company as follows: (a) In case the Company shall (i) ~~pay~~ declare a ~~dividend~~ dividend, or make a distribution, in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~its Common Stock, on its Common Stock, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (~~subdivide or ~~any event treated as such for U.S. Federal income tax purposes), (iii) subdivide~~ reclassify its outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding Common Stock into a small number of shares, (iv) make a distribution on its Common Stock in shares of ~~Class A common~~ its capital stock ~~into a smaller number~~ other than Common Stock or (v) issue by reclassification of its Common Stock shares of ~~Class A common~~ its capital stock, the conversion privilege and the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock of the Company which he such Holder would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above had such ~~action had the~~ Note been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of ~~a subdivision~~ subdivision, combination or ~~combination~~reclassification. Such adjustment shall be made successively whenever any event listed above shall occur. In the event such dividend, issue or distribution is not so made, the conversion privilege and the Conversion Price then in effect shall be readjusted to the conversion privilege and the Conversion Price which would then be in effect if such dividend, issue or distribution had not been declared or made shall remain in effect. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a The current market price per share of Common Stock at any date shall be deemed to be the average of the last reported sale prices for the twenty (~~or having a conversion price per share~~20) ~~less than the Current Market Price per share~~ consecutive Trading Days (as ~~determined pursuant~~ defined below) next preceding the day five (5) days prior to ~~subsection~~ the day in question. The last reported sale price for each day shall be (fi) ~~below~~the last reported sale price of Common Stock on the National Market of the National Association of Securities Dealers, Inc., Automated Quotation System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (ii) if not quoted as described in clause (i), the means between the high bid and low asked quotations for Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for such class of stock on at least five (5) of the ~~Class A common~~ ten (10) preceding days or (iii) if the Common Stock is listed or admitted for trading on any national securities exchange, the last sale price, or the closing bid price if no sale occurred, of such class of stock on the ~~record date for determining~~ principal securities exchange on which class of stock is listed. If the ~~holders~~ Common Stock is quoted on a national securities or central market system, in lieu of a market or quotation system described above, the closing price shall be determined in the manner set forth in clause (ii) of the ~~Class A common~~ preceding sentence if bid and asked quotations are reported but actual transactions are not, and in the manner set forth in clause (iii) of the preceding sentence if actual transactions are reported. If none of the conditions set forth above is met, the closing price of Common Stock on any day or the average of such closing prices for any period shall be the fair market value of such class of stock ~~entitled~~ as determined by a member firm of the New York Stock Exchange, Inc. selected by the Company. As used herein the term "Trading Days" with respect to ~~receive~~ Common Stock means (i) if the Common Stock is ------------ quoted on the National Market of the National Association of Securities Dealers, Inc., Automated Quotation System or any similar system of automated dissemination of quotations of securities prices, days on which trades may be made on such ~~rights~~system or (ii) if the Common Stock is listed or admitted for trading on any national securities exchange, ~~options or warrants,~~ days on which such national securities exchange is open for business. (c) No adjustment in the Conversion Price shall be ~~adjusted so~~ required unless such adjustment would require an increase or decrease of at least one percent (1%) in such price; provided, however, that any adjustment which by reason of -------- ------- this subsection (c) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. Anything in this Section 10.05 to the ~~same~~ contrary notwithstanding, the Company shall ~~equal~~ be entitled to make such reductions in the ~~price determined~~ Conversion Price, in addition to those required by ~~multiplying~~ this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividends, subdivision of shares, distribution of rights to purchase stock or securities, or a distribution of securities convertible into or exchangeable for stock hereafter made by the company to its stockholders shall not be taxable. (d) Whenever the Conversion Price is adjusted, as herein provided, the Company shall promptly file with the Trustee and any Agent other than the Trustee an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth in ~~effect immediately prior to~~ reasonable detail the facts requiring such ~~record date by~~ adjustment. Promptly after delivery of such certificate, the Company shall prepare a ~~fraction~~ notice of ~~which the numerator shall be the number of shares of Class A common stock outstanding as~~ such adjustment of the ~~close~~ Conversion Price setting forth the adjusted Conversion Price and the date on which such adjustment becomes effective and shall mail such notice of ~~business on~~ such ~~record date plus the number of shares of Class A common stock which the aggregate offering price~~ adjustment of the ~~total number of shares of Class A common stock so offered (~~Conversion Price to the ~~holders~~ holder of ~~outstanding Class A common stock) for subscription or purchase (or~~ any Note at his last address appearing on the ~~aggregate conversion price~~ registration books of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsRegistrar. (ce) In any case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by which this Section ~~9.11), then in each such case the Conversion Price shall be adjusted so~~ 10.05 provides that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such an adjustment shall become effective immediately after ~~the~~ a record date for an event, the ~~determination~~ Company may defer until the occurrence of such event (i) issuing to the ~~holders~~ holder of ~~Class A common stock entitled to receive~~ any Note converted after such ~~distribution. Notwithstanding~~ record date and before the ~~foregoing, in case Company shall distribute rights, options or warrants to subscribe for~~ occurrence of such event the additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (by reason of the ~~"Conversion Shares"), a number of Rights to be determined as follows: (i) if~~ adjustment required by such event over and above the Common Stock issuable upon such conversion ~~occurs on or prior~~ before giving effect to ~~the date for the distribution to the holders of Rights of separate certificates evidencing~~ such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; adjustment and (ii) if paying to such ~~conversion occurs after the Distribution Date, the same number~~ holder any amount in cash in lieu of ~~Rights~~ any fraction pursuant to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the RightsSection 10.03. (df) ~~In case Company shall, by dividend or otherwise, at any time make~~ If after an adjustment a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part Holder of a ~~distribution requiring~~ Note upon conversion of such Note receives shares of two or more classes of capital stock of the Company, the Company shall determine on a fair basis the allocation of the adjusted Conversion Price ~~adjustment pursuant to subsection (c)~~ between the classes of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datecapital stock. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 3 contracts

Samples: Indenture (Cellstar Corp), Indenture (Cellstar Corp), Indenture (Cellstar Corp)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case ~~Company~~ the Issuer shall (i1) pay a dividend or make a distribution on Class A Common Stock in shares of Class A ~~common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide its outstanding shares of Class A ~~common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine its outstanding shares of Class A ~~common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior to such action shall be adjusted as provided below so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A ~~common stock~~ Common Stock which he would have ~~owned~~ been entitled to receive immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immedi ately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case ~~Company~~ the Issuer shall issue rights, warrants or options ~~or warrants~~ to all holders of Class A ~~common stock~~ Common Stock entitling them for a period expiring within 45 days after the record date therefor to subscribe for or purchase shares of Class A ~~common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fd) below) of the Class A ~~common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (1) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights, warrants or option by a ~~fraction~~ fraction, of ~~which~~ which (2) the numerator shall be (A) the number of shares of Class A ~~common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights, warrants or options immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights, warrants or options and dividing the product so obtained by such current market price), and of ~~which~~ which (3) the denominator shall be (A) the number of shares of Class A ~~common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights, warrants or options, immediately prior to such issuance, plus (B) the number of additional shares of Class A ~~common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immedi ately, except as provided in subsection (b)e) below, after the ~~number~~ record date for the determination of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders Holders entitled to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for receive such rights, ~~warrants,~~ warrants or options~~, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case ~~Company~~ the Issuer shall distribute to all holders of Class A ~~common stock shares~~ Common Stock evidences of ~~capital stock of Company~~ indebtedness, equity securities (including equity interests in the Issuer's Subsidiaries) other than Class A ~~common stock~~Common Stock or other assets (other than cash dividends), ~~evidences~~ or shall distribute to all holders of ~~indebtedness, cash,~~ Class A Common Stock rights, warrants or options ~~or warrants entitling the holders thereof~~ to subscribe ~~for or purchase~~ to securities (other than ~~rights, options or warrants described~~ those referred to in subsection (b) ~~above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii)~~ above and dividends and ~~distributions described in subsection (a) above and (iii)~~ distributions in connection with the ~~consolidation~~liquidation, ~~merger~~ dissolution or ~~transfer~~ winding up of ~~assets covered by Section 9.11~~the Issuer), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fd) below) of the Class A ~~common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market ~~value~~ value, and described in a ~~board resolution~~Board Resolution filed with the Trustee) of the portion of the assets, evidences of ~~indebtedness, shares~~ indebtedness and equity securities so distributed or of ~~capital stock, cash,~~ such subscription rights~~, options~~, warrants or ~~other assets so distributed~~ options applicable to one share of Class A ~~common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the Class A ~~common stock~~Common Stock. For the purposes of this subsection (c), in the event of a distribution of shares of capital stock or other securities of any Subsidiary as a dividend on shares of Class A Common Stock, the then fair market value of the shares of other securities so distributed shall be deemed to be the market value (determined as provided above) of such shares or other securities. Such adjustment shall become effective ~~immediately~~ immediately, except as provided in subsection (e) below, after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution~~. Notwithstanding~~ . (d) For the ~~foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares~~ purpose of ~~Company's capital stock (other than rights, options or warrants referred to in subsection~~ any computation under subsections (b) and (c) above~~) ("Rights") to all holders~~ , the current market price per share of Class A ~~common stock, Company may, in lieu of making~~ Common Stock on any ~~adjustment pursuant~~ date shall be deemed to be the ~~foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder~~ average of the ~~Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption~~ Last Sale Prices of ~~the Rights shall be entitled to receive upon such conversion, in addition to the shares~~ a share of Class A ~~common stock issuable upon such conversion (~~Common Stock for the five consecutive Trading Days commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "~~Conversion Shares~~ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Class A Common Stock trades regular way on the principal national securities exchange on which the Class A Common Stock is listed or admitted to trading (or if not so listed or admitted on NASDAQ or a similar organization if NASDAQ is no longer reporting trading information) without the right to receive such issuance or distribution. (e) In any case in which this Section shall require that an adjustment be made immediately follow ing a record date, the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), ~~a number of Rights~~ in which case the Issuer shall, with respect to ~~be determined as follows:~~ any Security converted after such record date and before such adjustment shall have become effective (i) ~~if such conversion occurs on~~ defer making any cash payment pursuant to Section 12.3 or ~~prior~~ issuing to the ~~date for~~ Holder of such Security the ~~distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a~~ number of shares of Class A ~~common~~ Common Stock and other capital stock ~~equal to~~ of the ~~number of Conversion Shares is entitled at the time of~~ Issuer issuable upon such conversion in ~~accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder~~ excess of the number of shares of Class A ~~common~~ Common Stock and other capital stock ~~into which the principal amount~~ of the ~~Note so converted was convertible immediately~~ Issuer issuable thereupon only on the basis of the Conversion Price prior to adjustment, and (ii) not later than five Business Days after such adjustment shall have become effective, pay to such Holder the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in appropriate cash ~~(including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment~~ payment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled Section 12.3 and issue to such ~~distribution (~~Holder the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of additional shares of Class A ~~common~~ Common Stock and other capital stock ~~outstanding~~ of the Issuer issuable on ~~the Distribution Record Date~~ such conversion. (~~excluding shares held~~ f) No adjustment in ~~the treasury of Company),~~ the Conversion Price shall be ~~reduced so~~ required if Securityholders are to participate in the transaction on a basis and with notice that the ~~same shall equal the price determined by multiplying such Conversion Price~~ Board of Directors determines to be fair and appropri ate in ~~effect immediately prior to the effectiveness~~ light of the ~~Conversion Price reduction contemplated by this subsection (d) by a fraction of~~ basis and notice on which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share holders of Class A ~~common stock (which shall be determined by dividing~~ Common Stock participate in the ~~sum of the aggregate amount of cash and the aggregate Excess Payments so distributed~~transaction. In addition, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price ~~pursuant to subsection (c)~~ shall be required unless such adjustment would require an increase or ~~(d)~~ decrease of ~~this Section or~~ at least 1% in the Conversion Price; provided that any adjustments which by reason of this subsection (ef) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (g) Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth in reasonable detail the facts requiring such adjustment and the calculations on which the adjustment is based, which certificate shall be conclusive evidence of the correctness of such adjustment and which shall be made available by the Trustee to the Holders of Securities for inspection thereof, (ii) mail or cause to be mailed a notice of such adjustment, setting forth the adjusted Conversion Price and the date on which such adjustment became or becomes effective, to each Holder of Securities at his address as the same appears on the registry books of the Issuer. To the extent permitted by law, the Issuer from time to time may reduce the Conversion Price by any amount for any period of at least 20 days, if the Board of Directors has ~~been~~ made ~~plus (y)~~ a determination that such reduction would be in the ~~aggregate amount~~ best interests of ~~all Excess Payments in respect~~ the Issuer, which determination shall be conclusive. In such case, the Issuer shall give at least 15 days' notice of ~~any other tender offers or other negotiated transactions by Company or any of~~ the reduction. In addition, at its ~~Subsidiaries for Class A common stock concluded within~~ option, the ~~12 months preceding the Purchase Date and in respect of which no adjustment~~ Issuer may make such reduction in the Conversion Price ~~pursuant~~ as the Board of Directors deems advisable to ~~subsection (c)~~ avoid or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares diminish any income tax to holders of Class A ~~common stock outstanding on the Purchase Date (including~~ Common Stock resulting from any ~~tendered shares but excluding any shares held in the treasury~~ dividend or distribution of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (~~which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid~~ or ~~payable with respect~~ rights to ~~outstanding shares of Class A common stock within~~ acquire stock) or from any event treated as such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datefor income tax purposes.

Appears in 3 contracts

Samples: Indenture (American Tower Corp /Ma/), Indenture (American Tower Corp /Ma/), Indenture (American Tower Corp /Ma/)

Adjustment of Conversion Price. The Conversion Price with respect to Convertible Securities of a series shall be ~~subject to adjustment~~ adjusted from time to time as ~~follows:~~ follows with respect to events that take place after the initial issuance of any Securities of such series: (a) ~~In case~~ if the Company shall (i1) pay a dividend ~~in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes), (ii)~~ make a distribution in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock on the Common Stock, (~~iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iv3) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares or (4) issue by reclassification of ~~Class A common stock~~its Common Stock any shares of capital stock of the Company, the Conversion Price ~~in effect immediately prior to such action~~ shall be ~~adjusted~~ deemed to be proportionately adjusted, so that ~~the holder~~ any Holder of ~~this Note~~ any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock of the Company which he would have owned or been entitled to receive immediately following such action had ~~the Note~~ such Convertible Security been converted immediately prior thereto. ~~Any~~ If in any reclassification the holders of Common Stock are entitled to make an election between different forms of consideration, the Holders shall be deemed to have elected to receive the consideration payable to a plurality of the holders of Common Stock who have not duly filed elections as to the consideration to be received. An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (f) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 2 contracts

Samples: Senior Debt Indenture (Hasbro Inc), Senior Debt Indenture (Hasbro Inc)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time by the Company as follows: (a) In case the Company shall (i) pay a dividend in shares of ~~Class A common stock~~ Common Stock to the holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~its Common Stock, (ii) make a distribution in shares of ~~Class A common stock~~ Common Stock to the holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~its Common Stock, (iii) subdivide or split its outstanding ~~shares of Class A common stock~~ Common Stock into a ~~greater~~ larger number of ~~shares of Class A common stock~~ shares, or (iv) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive ~~the~~ that number of shares of ~~Class A common stock which he~~ Common Stock that it would have owned ~~immediately following~~ or been entitled to receive had such ~~action had the Note~~ Security been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately after~~ as of the close of business on the record date in the case of a dividend in shares or distribution and shall become effective ~~immediately after~~ as of the close of business on the effective date in the case of a ~~subdivision~~ subdivision, split or combination. (b) In case (i) the Company shall issue ~~rights, options~~ rights or warrants to all or substantially all holders of ~~Class A common stock~~ its Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to subscribe for or purchase shares of ~~Class A common stock~~ its Common Stock (or securities convertible into ~~Class A common stock~~its Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share ~~(as determined pursuant to subsection (f) below)~~ of the ~~Class A common stock~~ Company’s Common Stock at the record date for the determination of stockholders entitled to receive such rights or warrants or (ii) the Company shall sell or issue any Common Stock and the consideration per share of such Common Stock to be paid upon such sale or issuance is less than the Current Market Price per share of such Common Stock or the Company shall sell or issue warrants, rights or other convertible securities to subscribe for or purchase shares of its Common Stock at a price per share less than the Current Market Price per share of such Common Stock on the date of such sale or issuance, the Conversion Price in effect as of the close of business on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price~~ thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect ~~immediately prior to such~~ on the record date by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the number of shares of ~~Class A common stock~~ the Company’s Common Stock outstanding ~~as of the close of business~~ on such record ~~date~~ date, plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares of ~~Class A common stock~~ the Company’s Common Stock so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and the denominator of which ~~the denominator~~ shall be the number of shares of ~~Class A common stock~~ the Company’s Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ the Company’s Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such ~~adjustments~~ adjustment shall be made successively whenever any such rights, warrants or convertible securities are issued, and shall become effective ~~immediately after~~ as of the close of business on such record date. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of the Company’s Common Stock actually issued (~~b),~~ or the number of shares of ~~Class A common stock at any time outstanding shall not include shares held in~~ the ~~treasury~~ Company’s Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued). (c) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock, cash (excluding (x) any regular cash dividend on such Common Stock to the extent that the aggregate cash dividend per share of the Common Stock in any four fiscal quarters does not exceed the greater of (A) the amount per share of the Common Stock of the cash dividend on the Common Stock for the preceding four fiscal quarters to the extent that such dividend for the preceding four fiscal quarters did not require any adjustment of the Conversion Price pursuant to this Section 3.06(c) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Prices during the ten Business Days immediately prior to the date of declaration of such dividend, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and (z) any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to Section 3.06(d)), then, in such case, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the record date of such action by a fraction, the numerator of which shall be the Current Market Price of the Company’s Common Stock on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of the Company’s Common Stock and the denominator shall be the Current Market Price of the Company’s Common Stock on such record date, such decrease shall be effective immediately prior to the opening of business on the day following the record date of such action; provided that, in the event the portion of the cash so distributed applicable to one share of the Company’s Common Stock is equal to or greater than the Current Market Price of such Common Stock on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted such Security on the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 3.06(c) as a result of a distribution that is a regular dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the regular cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 3.06(c) above as a result of a distribution that is not a regular dividend, such adjustment shall be based upon the full amount of the distribution. (d) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person), or shall distribute to all holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options~~ its Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase any of its securities (~~other than rights, options or warrants described~~ excluding those referred to in ~~subsection~~ Section 3.06(b)) (~~b) above) or other assets (including securities~~ any of ~~Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except~~ the foregoing hereinafter referred to as ~~described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with~~ the ~~consolidation, merger or transfer of assets covered by Section 9.11~~“Distributed Securities”), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect ~~immediately prior to~~ as of the close of business on the record date of for such distribution by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the Current Market Price ~~(determined as provided in subsection (f) below)~~ of the ~~Class A common stock~~ Company’s Common Stock on the record date mentioned below less the fair market value on such record date ~~(as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution)~~ of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed~~ Distributed Securities applicable to one share of ~~Class A common stock~~ the Company’s Common Stock (determined on the basis of the number of shares of the ~~Class A common stock~~ Company’s Common Stock outstanding on the record date), and the denominator of which ~~the denominator~~ shall be ~~such~~ the Current Market Price per share of the ~~Class A common stock~~Company’s Common Stock on such record date. Such adjustment shall become effective ~~immediately after~~ as of the close of business on the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event (x) that the Company shall distribute ~~rights, options~~ rights or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in ~~subsection (b~~Section 3.06(b)) ~~above) ("Rights")~~ pro rata to ~~all~~ holders of ~~Class A common stock~~its Common Stock or (y) the then fair market value of the portion of the Distributable Securities so distributed applicable to one share of the Company’s Common Stock is equal to or greater than the Current Market Price of such Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 3.06, make proper provision so that ~~the holder~~ each Holder of ~~the Note~~ a Security who converts ~~the Note~~ such Security (or any portion thereof) after the record date for such distribution and ~~prior to the expiration or redemption of the Rights~~ shall be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ the Company’s Common Stock issuable upon such conversion (the "“Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"”), the ~~same number~~ amount of ~~Rights~~ Distributed Securities such Holder would have received had such Holder converted such Security on such record date; provided that, with respect to ~~which a holder of a number of shares of Class A common stock equal~~ clause (x), the foregoing provision shall apply only to the ~~number~~ extent the Distributed Securities receivable upon conversion for such Security would be convertible, exchangeable or exercisable, as applicable, without any loss of ~~Conversion Shares is entitled~~ rights or privileges for a period of at ~~the time~~ least 60 days following conversion of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the RightsSecurity. (de) In case ~~Company shall,~~ a tender or exchange offer made by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any Subsidiary of ~~its Subsidiaries~~ the Company for ~~Class A common stock concluded within~~ all or any portion of the ~~12 months preceding~~ Company’s Common Stock shall expire and such tender or exchange offer shall involve the ~~Distribution Record Date~~ payment by the Company or such Subsidiary of consideration per share of the Company’s Common Stock having a fair market value (as determined by the Board of Directors of the Company or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in ~~respect~~ a resolution of ~~which no Conversion Price adjustment~~ such Board of Directors or such duly authorized committee thereof, as the case may be, at the last time (the “Expiration Time”) tenders or exchanges may be made pursuant to ~~subsections~~ such tender or exchange offer (cas it shall have been amended)) ~~or (e) of this Section or this subsection (d) has been made,~~ that exceeds ~~12 1/2% of the product of~~ the Current Market Price per share ~~(determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock~~ Company’s Common Stock on the ~~Distribution Record Date multiplied by~~ Trading Day next succeeding the ~~number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)~~Expiration Time, the Conversion Price shall be reduced so that the same shall equal the ~~price~~ Conversion Price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the ~~effectiveness of the Conversion Price reduction contemplated by this subsection (d)~~ Expiration Time by a fraction of which the numerator shall be the number of shares of the Company’s Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Current Market Price ~~per share~~ of the Company’s Common Stock on the Trading Day next succeeding the Expiration Time, and the denominator shall be the sum of (x) the fair market value (determined as ~~provided in subsection (f) of this Section~~aforesaid) of the ~~Class A common stock~~ aggregate consideration payable to stockholders based on the ~~Distribution Record Date less~~ acceptance (up to any maximum specified in the ~~sum~~ terms of the ~~aggregate amount~~ tender or exchange offer) of ~~cash~~ all shares validly tendered or exchanged and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum not withdrawn as of the ~~aggregate amount~~ Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of ~~Class A common stock~~ the Company’s Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price of the Company’s Common Stock on the ~~Distribution Record Date~~Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the Trading Day next succeeding the Expiration Time. In the event that the Company or such Subsidiary is obligated to purchase shares of the Company’s Common Stock pursuant to any such tender or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be effect if such tender or exchange offer had not been made. (f) In case a tender or exchange offer made by a Person other than the Company or any Subsidiary of the Company for an amount that increases the offeror’s ownership of the Company’s Common Stock to more than 30% of the Company’s Common Stock outstanding shall expire and such tender or exchange offer shall involve the payment by such Person of consideration per share of the Company’s Common Stock having a fair market value (as determined by the Board of Directors of the Company or to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of such Board of Directors or such duly authorized committee thereof, as the case may be) at the Expiration Time that exceeds the Current Market Price of the Company’s Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of the Expiration Time the Board of Directors of the Company is not recommending rejection of the offer, the Conversion Price shall be reduced so that the same shall equal the Conversion Price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of the Company’s Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Current Market Price of the Company’s Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be ~~such~~ the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all Purchased Shares and (y) the product of the number of shares of the Company’s Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price ~~per share (determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock~~ Company’s Common Stock on the ~~Distribution Record Date~~Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~Expiration Time. In the event that such Person is obligated to purchase shares of the Company’s Common Stock pursuant to any such tender or exchange offer, but such Person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 3.06(f) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article 5. (eg) In any case in which this Section 3.06 shall require that an adjustment be made on a ~~tender offer or other negotiated transaction made~~ record date established for purposes of this Section 3.06, the Company may elect to defer (but only until five Business Days following the filing by the Company ~~or any Subsidiary of Company for all or any portion~~ with the Trustee of the ~~Class A common stock shall be consummated, if an Excess Payment is made~~ certificate described in ~~respect of such tender offer or other negotiated transaction and~~ Section 3.09) issuing to the ~~aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount~~ Holder of any ~~distributions~~Security converted after such record date but prior to the issue date, ~~by dividend or otherwise, to all holders~~ the shares of the ~~Class A common~~ Company’s Common Stock and other capital stock ~~made in cash (including any distributions~~ of ~~cash out~~ the Company issuable upon such conversion over and above the shares of ~~current or retained earnings~~ the Company’s Common Stock and other capital stock of ~~Company) within~~ the ~~12 months preceding~~ Company issuable upon such conversion only on the ~~date~~ basis of ~~payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in~~ the Conversion Price ~~pursuant~~ prior to ~~subsection (c)~~ adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or ~~(d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers~~ cause its transfer agents to issue due bills or other ~~negotiated transactions~~ appropriate evidence prepared by the Company or of the right to receive such shares. If any ~~of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and~~ distribution in respect of which no an adjustment in to the Conversion Price ~~pursuant~~ is required to ~~subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2%~~ be made as of the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied~~ record date or effective date therefor is not thereafter made or paid by the ~~number of shares of Class A common stock outstanding on the Purchase Date (including~~ Company for any ~~tendered shares but excluding any shares held in the treasury of Company)~~reason, the Conversion Price shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior~~ readjusted to ~~the effectiveness of~~ the Conversion Price ~~reduction contemplated by this subsection (e) by a fraction of~~ which ~~the numerator shall~~ would then be ~~the Current Market Price per share (determined as provided~~ in ~~subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid~~ effect if such record date had not been fixed or ~~payable within~~ such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective ~~immediately prior to the opening of business on the day following the Purchase Date~~date had not occurred.

Appears in 2 contracts

Samples: Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc), Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had ~~the Note~~ such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by the Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to all holders of Class A common stock shares of capital stock of the Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than the Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall distribute rights, options or warrants to subscribe for additional shares of the Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that ~~the~~ each holder of ~~the~~ a Note who converts ~~the~~ such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case the Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by the Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of the Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by the Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 2 contracts

Samples: Modification Agreement (Easylink Services Corp), Modification Agreement (Easylink Services Corp)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case ~~Company~~ the Guarantor shall hereafter (i) pay a dividend or make a distribution on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~Capital Stock of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock or other Capital Stock of the Guarantor which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock. (b) In case ~~Company~~ the Guarantor shall hereafter issue ~~rights, options~~ rights or warrants to ~~all~~ holders of ~~Class A common stock~~ its outstanding shares of Common Stock generally entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share ~~(as determined pursuant to subsection (f) below)~~ of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants~~, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case ~~Company~~ the Guarantor shall hereafter distribute to ~~all~~ holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its outstanding Common Stock generally evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or assets (excluding any cash dividend paid from retained earnings of the Guarantor and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of this Section 10.05) or rights or warrants ~~entitling the holders thereof~~ to subscribe ~~for or purchase~~ to securities of the Guarantor (~~other than rights, options or warrants described~~ excluding those referred to in subsection (b) ~~above) or other assets (including securities~~ of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by this Section ~~9.11~~10.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price ~~(determined as provided in subsection (f) below)~~ per share of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and shall be described in a ~~board resolution~~statement filed with the Trustee and with the Registrar) of the portion of the evidences of ~~indebtedness, shares of capital stock, cash, rights, options, warrants~~ indebtedness or ~~other~~ assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such Current Market Price per share of ~~the Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In any case in which this Section 10.05 shall require that an adjustment be made immediately following a record date, the Guarantor may elect to defer (but only until five Business Days following the filing by the Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the ~~sum of (x)~~ Trustee and the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% Registrar of the ~~product~~ certificate of ~~the Current Market Price per share (determined as provided~~ independent public accountants described in subsection (f) of this ~~Section~~Section 10.05) issuing to the Holder of any Security converted after such record date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the ~~Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date~~ Conversion Price prior to adjustment. (~~excluding shares held~~ e) No adjustment in ~~the treasury of Company),~~ the Conversion Price shall be ~~reduced so~~ required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that ~~the same shall equal the price determined~~ any adjustments which by ~~multiplying such Conversion Price in effect immediately prior to the effectiveness~~ reason of ~~the Conversion Price reduction contemplated by~~ this subsection (de) ~~by a fraction of which the numerator~~ are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the ~~Current Market Price per share~~ provisions of this Article 10 (~~determined as provided in~~ other than this subsection (f) e)), not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Securities or Common Stock. All calculations under this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which Section 10.05 shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior made to the ~~opening~~ nearest cent or to the nearest 1/100th of ~~business on the day following the Distribution Record Date. (e) In case~~ a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be ~~(the "Purchase Date"), and as~~ entitled to ~~which no adjustment~~ make such reductions in the Conversion Price, in addition to those required by this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Guarantor to its shareholders shall not be taxable. (f) Whenever the Conversion Price is adjusted as herein provided, (i) the Company and the Guarantor shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the manner of computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be given by the Company and the Guarantor to the Holders in the manner provided in Section 13.02. Subject to TIA Section 315(a), (c) and (d), the Trustee and any conversion agent shall be under no duty or responsibility with respect to any such certificate or the certificate provided for in Section 10.10 except to exhibit the same from time to time to any Holder of a Security desiring an inspection of such certificate. (g) In the event that at any time as a result of an adjustment made pursuant to subsection (~~c) or (d~~a) of this Section ~~or this subsection (e) has been made plus (y)~~ 10.05, the ~~aggregate amount of all Excess Payments in respect~~ Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the Guarantor other ~~tender offers or other negotiated transactions by Company or any~~ than shares of ~~its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in~~ Common Stock, thereafter the Conversion Price ~~pursuant to subsection (c) or (d)~~ of ~~this Section or this subsection (e) has been made, exceeds 12 1/2%~~ such other shares so receivable upon conversion of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any ~~tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ Security shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price~~ subject to adjustment from time to time in ~~effect immediately prior~~ a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable provisions with respect to ~~outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment~~ Common Stock contained in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this ~~Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date~~Article 10.

Appears in 2 contracts

Samples: Indenture (Toll Brothers Inc), Indenture (Toll Corp)

Adjustment of Conversion Price. The Conversion Price for each series shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company ~~shall~~ shall, while any of the Debentures are outstanding, (i) pay a dividend or make a distribution with respect to its Common Stock Series A in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock Series A, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock into a greater number of shares of Class A common stock or~~ Common Stock Series A, (iviii) combine its outstanding shares of ~~Class~~ Common Stock Series A ~~common stock~~ into a smaller number of shares or (iv) issue by reclassification of ~~Class~~ its shares of Common Stock Series A ~~common stock~~any shares of capital stock of the Company, the conversion privilege and the Conversion Price for each series of Debentures in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ capital stock of the Company which he would have owned immediately following such action had ~~the Note~~ such Debenture been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after the effective date in ~~the~~ case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification (or immediately after the record date if a record date shall have been established for such event). If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Debenture thereafter surrendered for conversion shall become entitled to receive shares of two or more classes or series of capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a Board Resolution filed with the Trustee) shall determine the allocation of the adjusted Conversion Price for each series of Debentures between or among shares of such classes or series of capital stock. (b) In case the Company ~~shall~~ shall, while any of the Debentures are outstanding, issue ~~rights, options~~ rights or warrants to all holders of ~~Class~~ its Common Stock Series A ~~common stock~~ entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of ~~Class~~ Common Stock Series A ~~common stock (or securities convertible into Class A common stock)~~ at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Stock Series A (as determined pursuant to subsection (f) below) ~~of the Class A common stock~~ on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price ~~shall be adjusted so that~~ for the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price Debentures shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such ~~distribution~~ rights or warrants by a fraction of which the numerator shall be the ~~Current Market Price (determined as provided in subsection (f) below)~~ number of ~~the Class~~ shares of Common Stock Series A ~~common stock~~ outstanding on the ~~record~~ date ~~mentioned below less the fair market value on such record date (as determined by the Board~~ of ~~Directors, whose determination shall be conclusive evidence~~ issuance of such ~~fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options,~~ rights or warrants ~~or other assets so distributed applicable to one share of Class A common stock (determined on the basis of~~ plus the number of shares which the aggregate offering price of the ~~Class A common stock outstanding on the record date)~~total number of shares so offered for subscription or purchase would purchase at such current market price, and of which the denominator shall be the number of shares of Common Stock Series A outstanding on the date of issuance of such ~~Current Market Price~~ rights or warrants plus the number of ~~the Class~~ additional shares of Common Stock Series A ~~common stock~~offered for subscription or purchase. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such ~~distribution~~rights or warrants. ~~Notwithstanding~~ To the ~~foregoing~~extent that shares of Common Stock Series A are not so delivered after the expiration of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. For the purposes of this subsection, the number of shares of Common Stock Series A at any time outstanding shall not include shares held in the treasury of the Company. The Company shall not issue any rights or warrants in respect of shares of Common Stock Series A held in the treasury of the Company. In case any rights or warrants referred to in this subsection in respect of which an adjustment shall have been made shall expire unexercised within 45 days after the same shall have been distributed or issued by the Company, the Conversion Price shall be readjusted at the time of such expiration to the Conversion Price that would have been in effect if no adjustment had been made on account of the distribution or issuance of such expired rights or warrants. (c) Subject to the last sentence of this subsection, in case the Company ~~shall~~ shall, by dividend or otherwise, distribute ~~rights~~to all holders of its Common Stock Series A evidences of its indebtedness, ~~options or warrants to subscribe for additional~~ shares of ~~Company's~~ any class or series of capital stock (other than ~~rights~~Common Stock Series A), ~~options~~ cash or assets (including securities, but excluding any rights or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by any dividend or ~~otherwise, at any time make a~~ distribution ~~to all holders of its Class A common stock~~ paid exclusively in cash ~~(including~~ and any ~~distributions of cash out of current~~ dividend or ~~retained earnings of Company but excluding any cash that is distributed as part of a~~ distribution ~~requiring a Conversion Price adjustment pursuant~~ referred to in subsection (ca) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (c) by a fraction of which the numerator shall be (d) In case the Company shall pay or make a dividend or other distribution on its Common Stock Series A exclusively in cash (excluding all regular cash dividends if the annualized amount thereof per share of Common Stock Series A does not exceed 15% of the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the Trading Day next preceding the date of declaration of such dividend, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share 25 (determined as provided in subsection (f~~) of this Section~~)) of the ~~Class~~ Common Stock Series A ~~common stock~~ on the ~~Distribution Record Date~~ date fixed for the payment of such distribution less the ~~sum of the aggregate~~ amount of cash so distributed and ~~the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made)~~ not excluded as provided applicable to one share of ~~Class~~ Common Stock Series A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such ~~Current Market Price~~ current market price per share ~~(determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock on the Distribution Record Date~~Common Stock Series A, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary~~ date fixed for the payment of ~~Company for all or any~~ such distribution; provided, however, that in the event the portion of the ~~Class~~ -------- ------- cash so distributed applicable to one share of Common Stock Series A ~~common stock shall be consummated, if an Excess Payment~~ is ~~made in respect of such tender offer~~ equal to or ~~other negotiated transaction and~~ greater than the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price market price per share (determined as provided in subsection (f~~) of this Section~~)) of the ~~Class~~ Common Stock Series A ~~common stock~~ on the ~~Purchase Date multiplied~~ record date mentioned above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Debentures shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted such Debentures immediately prior to the record date for the distribution of the cash. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed. (e) In case a tender or exchange offer (other than an odd-lot offer) made by the ~~number~~ Company or any Subsidiary of ~~shares~~ the Company for all or any portion of ~~Class~~ the Company's Common Stock Series A ~~common stock outstanding~~ shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of Common Stock Series A having a fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds 110% of the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the ~~Purchase Date (including any tendered shares but excluding any shares held in~~ Trading Day next succeeding the ~~treasury of Company)~~Expiration Time, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection ~~(e)~~ by a fraction of which the numerator shall be the ~~Current Market Price~~ number of shares of Common Stock Series A outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the current market price per share (determined as provided in subsection (f~~) of this Section~~)) of the ~~Class~~ Common Stock Series A ~~common stock~~ on the ~~Purchase Date less~~ Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the ~~aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period~~ fair market value (~~including, without limitation, the Excess Payment in respect of which such adjustment is being made~~determined as aforesaid) ~~applicable to one share of Class A common stock (which shall be determined by dividing the sum~~ of the aggregate ~~amount~~ consideration payable to holders based on the acceptance (up to any maximum specified in the terms of ~~cash~~ the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the ~~aggregate Excess Payments~~ Expiration Time (the shares deemed so ~~distributed~~accepted, ~~paid or payable with respect~~ up to ~~outstanding shares~~ any such maximum, being referred to as the "Purchased Shares") and (y) the product of ~~Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by~~ the number of shares of ~~Class~~ Common Stock Series A ~~common~~ outstanding (less any Purchased Shares) at the Expiration Time and the current market price per share (f) For the purpose of any computation under subsections (b), (c), (d) or (e), the current market price per share of Common Stock Series A on any date in question shall be deemed to be the average of the daily Average Market Prices for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the day in question and, if applicable, the day before the "ex" date with respect to the issuance or distribution requiring such computation; provided, however, that if -------- ------- another event occurs that would require an adjustment pursuant to subsections (a) through (e), inclusive, the Board of Directors may make such adjustments to the Average Market Prices during such five Trading Day period as it deems appropriate to effectuate the intent of the adjustments in this Section, in which case any such determination by the Board of Directors shall be conclusive. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock Series A trades regular way on the NYSE or on such successor securities exchange as the Common Stock Series A may be listed or in the relevant market from which the Average Market Prices were obtained without the right to receive such issuance or distribution, and (2) when used with respect to any tender or exchange offer means the first date on which the Common Stock Series A trades regular way on such securities exchange or in such market after the Expiration Time of such offer. (g) The Company may make such reductions in the Conversion Price, in addition to those required by subsections (a) through (e) as it considers to be advisable to avoid or diminish any income tax to holders of Common Stock Series A or rights to purchase Common Stock Series A resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. The Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during the period, and the Board of Directors of the Company shall have made a determination that such reduction would be in the best interest of the Company, which determination shall be conclusive. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Company shall mail to Holders of the Debentures a notice of the reduction at least fifteen (15) days prior to the date the reduced Conversion Price takes effect, and such notice shall state the reduced Conversion Price and the period it will be in effect. (h) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price; provided; however; that any adjustments which -------- ------- by reason of this subparagraph (i) are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment shall be required. (i) Notwithstanding the foregoing provisions, the issuance of any shares of Common Stock Series A pursuant to any plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock Series A under any such plan, and the issuance of any shares of Common Stock Series A or options or rights to purchase such shares pursuant to any employee benefit plan or program of the Company or pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding on the ~~Purchase Date) and~~ date the ~~denominator~~ Debentures are first issued, shall not be ~~such Current Market~~ deemed to constitute an issuance of Common Stock Series A or exercisable, exchangeable or convertible securities by the Company to which any of the adjustment provisions described above applies. There shall also be no adjustment of the Conversion Price ~~per share~~ in case of the issuance of any stock (~~determined as provided in subsection (f) of this Section~~or securities convertible into or exchangeable for stock) of the ~~Class A common stock on~~ Company except as specifically described in this Article Five. (j) If any action would require adjustment of the ~~Purchase Date~~Conversion Price pursuant to more than one of the provisions described above, only one adjustment shall be made and such ~~reduction to become effective immediately prior~~ adjustment shall be the amount of adjustment that has the highest absolute value to the ~~opening~~ Holder of ~~business on~~ the ~~day following the Purchase Date~~Debentures.

Appears in 2 contracts

Samples: First Supplemental Indenture (Citizens Utilities Capital L P), First Supplemental Indenture (Citizens Utilities Capital L P)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case ~~Company~~ the Guarantor shall hereafter (i) pay a dividend or make a distribution on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~Capital Stock of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock or other Capital Stock of the Guarantor which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock. (b) In case ~~Company~~ the Guarantor shall hereafter issue ~~rights, options~~ rights or warrants to ~~all~~ holders of ~~Class A common stock~~ its outstanding shares of Common Stock generally entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share ~~(as determined pursuant to subsection (f) below)~~ of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants~~, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case ~~Company~~ the Guarantor shall hereafter distribute to ~~all~~ holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its out- standing Common Stock generally evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or assets (excluding any cash dividend paid from retained earnings of the Guarantor and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of this Section 10.05) or rights or warrants ~~entitling the holders thereof~~ to subscribe ~~for or purchase~~ to securities of the Guarantor (~~other than rights, options or warrants described~~ excluding those referred to in subsection (b) ~~above) or other assets (including securities~~ of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by this Section ~~9.11~~10.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price ~~(determined as provided in subsection (f) below)~~ per share of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and shall be described in a ~~board resolution~~statement filed with the Trustee and with the Registrar) of the portion of the evidences of ~~indebtedness, shares of capital stock, cash, rights, options, warrants~~ indebtedness or ~~other~~ assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such Current Market Price per share of ~~the Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In any case in which this Section 10.05 shall require that an adjustment be made immediately following a record date, the Guarantor may elect to defer (but only until five Business Days following the filing by the Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the ~~sum of (x)~~ Trustee and the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% Registrar of the ~~product~~ certificate of ~~the Current Market Price per share (determined as provided~~ independent public accountants described in subsection (f) of this ~~Section~~Section 10.05) issuing to the Holder of any Security converted after such record date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the ~~Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date~~ Conversion Price prior to adjustment. (~~excluding shares held~~ e) No adjustment in ~~the treasury of Company),~~ the Conversion Price shall be ~~reduced so~~ required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that ~~the same shall equal the price determined~~ any adjustments which by ~~multiplying such Conversion Price in effect immediately prior to the effectiveness~~ reason of ~~the Conversion Price reduction contemplated by~~ this subsection (de) ~~by a fraction of which the numerator~~ are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the ~~Current Market Price per share~~ provisions of this Article 10 (~~determined as provided in~~ other than this subsection (f) e)), not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Securities or Common Stock. All calculations under this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which Section 10.05 shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior made to the ~~opening~~ nearest cent or to the nearest 1/100th of ~~business on the day following the Distribution Record Date. (e) In case~~ a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be ~~(the "Purchase Date"), and as~~ entitled to ~~which no adjustment~~ make such reductions in the Conversion Price, in addition to those required by this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Guarantor to its shareholders shall not be taxable. (f) Whenever the Conversion Price is adjusted as herein provided, (i) the Company and the Guarantor shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the manner of computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be given by the Company and the Guarantor to the Holders in the manner provided in Section 13.02. Subject to TIA Section 315(a), (c) and (d), the Trustee and any conversion agent shall be under no duty or responsibility with respect to any such certificate or the certificate provided for in Section 10.10 except to exhibit the same from time to time to any Holder of a Security desiring an inspection of such certificate. (g) In the event that at any time as a result of an adjustment made pursuant to subsection (~~c) or (d~~a) of this Section ~~or this subsection (e) has been made plus (y)~~ 10.05, the ~~aggregate amount of all Excess Payments in respect~~ Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the Guarantor other ~~tender offers or other negotiated transactions by Company or any~~ than shares of ~~its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in~~ Common Stock, thereafter the Conversion Price ~~pursuant to subsection (c) or (d)~~ of ~~this Section or this subsection (e) has been made, exceeds 12 1/2%~~ such other shares so receivable upon conversion of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any ~~tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ Security shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price~~ subject to adjustment from time to time in ~~effect immediately prior~~ a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable provisions with respect to ~~outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment~~ Common Stock contained in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this ~~Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date~~Article 10.

Appears in 2 contracts

Samples: Indenture (Toll Brothers Inc), Indenture (Toll Brothers Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment ~~from time to time~~ as follows, provided that the Conversion Price shall never be less than the par value of the Common Stock: (ai) In case ~~Company shall~~ MSPC shall, after the date of the New Convertible Note, (iA) pay a stock dividend ~~in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes), (ii)~~ make a distribution in shares of ~~Class A common stock to holders of Class A common~~ its capital stock (whether shares of its Common Stock or of capital stock of any ~~event treated as such for U.S. Federal income tax purposes~~other class), (~~iii~~B) subdivide its outstanding shares of ~~Class A common stock into a greater number of shares of Class A common stock or~~ Common Stock, (ivC) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (D) issue by reclassification of its shares of ~~Class A common stock~~Common Stock any shares of capital stock of MSPC, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this~~ the New Convertible Note thereafter surrendered for conversion shall be entitled to receive ~~the~~ an equivalent number of shares of ~~Class A common~~ its Common Stock or capital stock of any other class which he it would have owned immediately following such action had the New Convertible Note been converted immediately prior thereto. Any adjustment made pursuant to this ~~subsection~~ Subsection (ai) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. (bii) In case ~~Company~~ MSPC, after the date hereof, shall issue rights, warrants or options ~~or warrants to all holders of Class A common stock~~ entitling ~~them~~ the recipients thereof to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market~~ Conversion Price ~~per share (as~~ for the New Convertible Note then in effect, the Conversion Price in effect immediately prior thereto shall be adjusted so that it shall equal the price determined ~~pursuant~~ by multiplying the Conversion Price in effect for immediately prior to ~~subsection (f) below)~~ the date of ~~the Class A common stock on the record date for determining the holders~~ issuance of ~~the Class A common stock entitled to receive~~ such rights, warrants or options by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, warrants or options (immediately prior to such issuance), plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered to subscription or purchase) would purchase at the Conversion Price then in effect, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, warrants or options (immediately prior to such issuance) plus the number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered for subscription or purchase are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued. In determining whether any rights, warrants or options entitle the holder of the New Convertible Note to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at less than the Conversion Price then in effect and in determining the aggregate offering price of such shares of Common Stock (or conversion price of such convertible securities), there shall be taken into account any consideration received by MSPC for such rights, warrants or options (and for such convertible securities), the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of MSPC (which determination shall be conclusive). If at the end of the period during which such warrants, rights or options are exercisable not all of such warrants, rights or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to the Conversion Price which would have been in effect based on the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock actually issuable) upon conversion of the convertible securities. (iii) In case MSPC, after the date of the New Convertible Note, shall distribute to all holders of its outstanding Common Stock any shares of capital stock (other than Common Stock), evidences of its indebtedness or assets (including securities and cash, but excluding any cash dividend paid out of current or retained earnings of MSPC and dividends or distributions payable in stock for which adjustment is made pursuant to Subsection (i) of this Section 5(d) or rights, warrants or options to subscribe for or purchase securities of MSPC (excluding those referred to in Subsection (ii) of this Section 5(d), then in each such case, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to ~~such~~ the record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market~~ Conversion Price ~~(determined as provided~~ for such New Convertible Note then in ~~subsection (f) below) of the Class A common stock on the record date mentioned below~~ effect less the fair market value on such record date (as determined in good faith by the Board of ~~Directors~~Directors of MSPC, ~~whose~~ which determination shall be ~~conclusive evidence of such fair market value and described in a board resolution~~conclusive) of the portion of the capital stock or the evidences of ~~indebtedness, shares~~ indebtedness or the assets so distributed to the holder of ~~capital stock, cash,~~ one share of Common Stock or of such subscription rights~~, options~~, warrants or ~~other assets so distributed~~ options applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date),~~ Common Stock and of which the denominator shall be ~~such Current Market~~ the Conversion Price ~~of the Class A common stock~~then in effect. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. If at the end of the period during which warrants, rights or options described in this Subsection (iii) are exercisable not all such warrants, rights or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based on the number of warrants, rights or options actually exercised. (iv) Notwithstanding anything in subsection (ii) or (iii) of this Section 5(d) to the ~~foregoing~~contrary, ~~in case Company shall distribute~~ with respect to any rights, warrants or options covered by Subsection (ii) or (iii) of this Section 5(d), if such rights, warrants or options are exercisable only upon the occurrence of specified events, then for purposes of this Section 5(d), such rights, warrants or options shall not be deemed issued or distributed, and any adjustment to ~~subscribe for additional~~ the Conversion Price required by subsection (ii) or (iii) of this Section 5(d) shall not be made until such events occur and such rights, warrants or options become exercisable. (v) In case MSPC, after the date of the New Convertible Note, shall issue shares of ~~Company's~~ its Common Stock (excluding those rights, warrants, options, shares of capital stock ~~(other than rights, options~~ or ~~warrants~~ evidences of its indebtedness or assets referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (eiii) of this Section ~~or this subsection (d~~5(d)) ~~has been made plus (y)~~ at a net price per share less than the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the ~~Distribution Record Date multiplied by~~ date that MSPC fixes the ~~number~~ offering price of ~~shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)~~such additional shares, the Conversion Price shall be reduced immediately thereafter so that ~~the same~~ it shall equal the price determined by multiplying such Conversion Price in effect immediately prior ~~to the effectiveness of the Conversion Price reduction contemplated by this subsection (d)~~ thereto by a fraction of which the numerator shall be the ~~Current Market Price per share (determined as provided in subsection (f)~~ number of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within~~ Common Stock outstanding immediately prior to the issuance of such ~~12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by~~ additional shares plus the number of shares of ~~Class A common stock outstanding on~~ Common Stock which the ~~Distribution Record Date)~~ aggregate offering price of the total number of shares of Common Stock so offered would purchase at the Conversion Price then in effect and the denominator shall be the number of shares of Common Stock that would be outstanding immediately after the issuance of such ~~Current Market Price per share~~ additional shares. Such adjustment shall be made successively whenever such an issuance is made. This Subsection (~~determined as provided~~ v) shall not apply to Common Stock issued to any employee, officer or director of MSPC under a bona fide employee or director benefit plan adopted by MSPC and approved by the stockholders of MSPC. (vi) In any case in which this Section 5(d) shall require that an adjustment be made immediately following a record date or an effective date, MSPC may elect to defer (but only until five Business Days following the mailing by MSPC to the holder of New Convertible Note of the certificate required by subsection (fviii) of this ~~Section)~~ Section 5(d), issuing to the holder of the ~~Class A common stock~~ New Convertible Note converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the ~~Distribution Record Date, such reduction to become effective immediately~~ basis of the Conversion Price prior to ~~the opening of business on the day following the Distribution Record Date~~adjustment. (evii) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no No adjustment in the Conversion Price ~~pursuant~~ of the New Convertible Note shall be required to ~~subsection~~ be made unless such adjustment would require an increase or decrease of at least one percent (c1%) ~~or (d)~~ in such price; provided, however, that any adjustments which by reason of this Subsection (vii) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 5(d) shall be made to the nearest one hundredth of one cent. (viii) Whenever the Conversion Price is adjusted as provided in this Section 5, MSPC will promptly mail to the holder of the New Convertible Note a certificate of MSPC’s Treasurer or ~~this subsection~~ Chief Financial Officer setting forth the Conversion Price as so adjusted and a brief statement of facts accounting for such adjustment. (eix) ~~has been made plus (y) the aggregate amount of all Excess Payments in respect~~ Irrespective of any ~~other tender offers~~ adjustment or ~~other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment~~ change in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by and the number of ~~shares~~ Shares actually purchasable under the New Convertible Note, a New Convertible Note thereafter issued in replacement of ~~Class A common stock outstanding on~~ New Convertible Note surrendered upon the ~~Purchase Date (including any tendered shares but excluding any shares held in the treasury~~ partial conversion of ~~Company),~~ such New Convertible Note may continue to express the Conversion Price ~~shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of~~ per Share thereunder as the Conversion Price ~~reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price~~ per ~~share (determined~~ Share as ~~provided~~ set forth in ~~subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within~~ such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateNew Convertible Note when initially issued.

Appears in 2 contracts

Samples: Convertible Promissory Note Exchange Agreement (Metrospaces, Inc.), Convertible Promissory Note Exchange Agreement (Metrospaces, Inc.)

Adjustment of Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company ~~shall~~ shall, at any time or from time to time while the Securities of any series are outstanding, (i) pay a dividend on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a ~~greater~~ larger number of ~~shares of Class A common stock~~ shares, or (iviii) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price for such series in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security of such series thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock or other securities of the Company which he would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above, had such ~~action had the Note~~ Convertible Security of such series been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection~~ subdivision (a) shall become ~~effective immediately after the record date~~ effective, in the case of a ~~dividend or distribution~~ dividend, on the payment date retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such dividend, subject to the provisions of paragraph (g) of this Section 1605, and shall become effective ~~immediately after the effective date~~ in the case of a subdivision or combination immediately after the opening of business on the day following the day when such subdivision or combination, as the case may be, becomes effective. (b) In case the Company ~~shall~~ shall, at any time or from time to time while the Convertible Securities of any series are outstanding, issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ its shares of Common Stock entitling them (for a period expiring within 45 days of the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Stock (as ~~determined pursuant to subsection~~ defined in paragraph (fd) below) ~~of the Class A common stock on the~~ at such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion Price ~~shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ of any series of Convertible Securities in effect immediately prior to the issuance of such ~~record date~~ rights or warrants shall be adjusted as follows: the number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series was theretofore convertible shall be multiplied by a ~~fraction~~ fraction, of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business on~~ immediately prior to such record date plus the number of additional shares of ~~Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so~~ Common Stock offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or ~~purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)~~purchase, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on immediately prior to such record date plus the number of ~~additional~~ shares which the aggregate offering price of ~~Class A common stock~~ the total number of shares so offered would purchase at such current market price; and the Conversion Price for ~~subscription or purchase (or~~ such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares into which ~~the~~ $1,000 principal amount of Securities of such series shall be convertible ~~securities so offered are convertible)~~as aforesaid. Such ~~adjustments~~ adjustment shall become effective on the date of such issuance retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such ~~record date. For~~ rights or warrants, subject to the ~~purposes~~ provisions of paragraph (g) of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of CompanySection 1605. In determining whether any ~~rights, options~~ rights or warrants entitle the holders to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock at less than ~~the Current Market Price~~such current market price, and in determining the aggregate offering price of such ~~shares of Class A common stock~~shares, there shall be taken into account any consideration received by the Company for such ~~rights,~~ rights or warrants~~, or options~~, the value of such consideration, if ~~any,~~ other than cash, to be determined by the Board of Directors. (c) In case the Company ~~shall~~ shall, at any time from time to time while the Convertible Securities of any series are outstanding, distribute to all holders of ~~Class A common stock~~ shares of ~~capital stock of Company (other than Class A common stock),~~ its Common Stock evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or securities or assets (excluding cash dividends or cash distributions payable out of consolidated net earnings or retained earnings) or rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase securities (other~~ shares of Common Stock at a price per share less than ~~rights~~the current market price per share of Common Stock, ~~options or warrants described~~ determined in ~~subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively~~ the manner set forth in ~~cash except as described in subsection~~ paragraph (d) below, but excluding rights or warrants referred to in paragraph (iib) ~~dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation~~above, ~~merger or transfer of assets covered by Section 9.11), then in each such case~~ the Conversion Price ~~shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ for such series of Convertible Securities in effect immediately prior to such distribution shall be adjusted by multiplying the ~~date~~ number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such ~~distribution~~ series of Convertible Securities was theretofore convertible by a ~~fraction~~ fraction, of which the numerator shall be the ~~Current Market Price~~ current market price per share of Common Stock (~~determined~~ as ~~provided~~ defined in ~~subsection~~ paragraph (fd) below) ~~of the Class A common stock~~ on the record date ~~mentioned below less the fair market value on~~ for such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)distribution, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock, less the then fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive) of the portion of such evidences of indebtedness, securities or assets or of such subscription rights or warrants so distributed applicable to one share of Common Stock; and the Conversion Price for such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares into which $1,000 principal amount of Convertible Securities of such series shall be convertible as aforesaid. Such adjustment shall become effective on the date of such distribution retroactively to immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~record date for the determination of shareholders entitled to receive such distribution, subject to the provisions of paragraph (g) of this Section 1605. For the purposes of this paragraph (c) consolidated net earnings or retained earnings shall be computed by adding thereto all charges against retained earnings on account of dividends paid in shares of Common Stock in respect of which the Conversion Price has been adjusted, all as determined by Independent Public Accountants, whose determination shall be conclusive. (d) For the purpose of any computation under paragraphs (b) and (c) above, the current market price per share of Common Stock at any date shall be deemed to be the average of the market values of the shares of Common Stock for the ten consecutive Business Days immediately preceding the day in question. The market value of the Common Stock for each day shall be determined as provided in Section 1603 hereof. (e) ~~In case a tender offer or other negotiated transaction made~~ The Company may make such reductions in the Conversion Price for any series of Convertible Securities, in addition to those required by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of paragraphs (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"a), (b) and (c) of this Section as it considers to ~~which~~ be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients. (f) Except as herein otherwise provided, no adjustment in the Conversion Price ~~pursuant~~ for any series of Convertible Securities shall be made by reason of the issuance, in exchange for cash, property or services, of shares of Common Stock, or any securities convertible into or exchangeable for shares of Common Stock, or carrying the right to ~~subsection~~ purchase any of the foregoing. (cg) If the Company shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive any dividend or ~~(d) of this Section~~ any subscription or ~~this subsection (e) has been made plus (y)~~ purchase rights or any distribution and shall, thereafter and before the ~~aggregate amount of all Excess Payments in respect~~ distribution to shareholders of any ~~other tender offers~~ such dividend, subscription or ~~other negotiated transactions~~ purchase rights or distribution, legally abandon its plan to pay or deliver such dividend, subscription or purchase rights or distribution, then no adjustment of the Conversion Price for any series of Convertible Securities shall be required by ~~Company or any~~ reason of ~~its Subsidiaries for Class A common stock concluded within~~ the ~~12 months preceding the Purchase Date and in respect~~ taking of ~~which no~~ such record. (h) No adjustment in the Conversion Price ~~pursuant to subsection (c)~~ for any series of Convertible Securities shall be required unless such adjustment would require an increase or ~~(d)~~ decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this ~~Section~~ paragraph (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fifteen shall be made to the nearest cent or ~~this subsection~~ to the nearest one-hundredth of a share, as the case may be. (ei) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), Whenever the Conversion Price for any series of Convertible Securities is adjusted as herein provided, the Company shall ~~be reduced so that~~ (i) forthwith place on file at the ~~same shall equal~~ Principal Office of the ~~price determined by multiplying~~ Trustee an Officers’ Certificate showing in detail the facts requiring such ~~Conversion Price in effect immediately prior to the effectiveness of~~ adjustment and the Conversion Price ~~reduction contemplated by this subsection~~ after such adjustment and shall exhibit the same from time to time to any Holder of Convertible Securities of such series desiring an inspection thereof, and (eii) by cause a ~~fraction~~ notice stating that such adjustment has been effected and the adjusted Conversion Price to be mailed to the Holders of ~~which~~ Registered Convertible Securities of such series at their last addresses as they shall appear on the ~~numerator shall be the Current Market Price per share~~ Security Register. (~~determined as provided in subsection (f~~j) ~~of this Section)~~ The Company may delete, modify or vary any of the ~~Class A common stock on the Purchase Date less the sum~~ provisions applicable to conversion of the ~~aggregate amount~~ Convertible Securities of ~~cash~~ any series, or may add new provisions applicable thereto, all as may be contained in the Board Resolutions and ~~the aggregate Excess Payments so distributed, paid~~ Officers’ Certificate or ~~payable within~~ supplemental indenture establishing such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateseries.

Appears in 2 contracts

Samples: Subordinated Indenture (Southern First Bancshares Inc), Subordinated Indenture (Southern First Bancshares Inc)

Adjustment of Conversion Price. The conversion price (the "Conversion ~~Price~~ Price") initially shall be ~~subject to adjustment~~ that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A-1, but shall be adjusted from time to time by the Company as follows: (a) In case the Company shall (i) pay a dividend or other distribution in shares of ~~Class A common stock~~ Common Stock or other Capital Stock to all holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii)~~ subdivide its outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of shares ~~of Class A common stock~~or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Capital Stock which he it would have owned ~~immediately following~~ or have been entitled to receive had such ~~action had the Note~~ Security been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of ~~a subdivision~~ subdivision, combination or ~~combination~~reclassification. (b) In case the Company shall issue ~~rights, options or warrants~~ to all holders of ~~Class A common stock~~ its Common Stock, rights, warrants or options entitling ~~them~~ such holders (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Stock (as determined ~~pursuant to~~ in accordance with subsection (fe) below) ~~of the Class A common stock on~~ at the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive such rights, ~~options~~ warrants or ~~warrants~~options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the ~~same~~ Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record ~~date~~ date, plus the number of shares ~~of Class A common stock~~ which the aggregate ~~offering~~ subscription or purchase price of for the total number of shares of ~~Class A common stock~~ Common Stock offered by the rights, warrants or options so ~~offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ issued (or the aggregate conversion price of the convertible securities ~~so offered~~offered by such rights, warrants or options) would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and the denominator of which ~~the denominator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered ~~for subscription~~ by such rights, warrants or ~~purchase~~ options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such ~~adjustments~~ adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (~~b),~~ or the number of shares of ~~Class A common stock at any time outstanding shall not include shares held in~~ Common Stock issuable upon conversion of convertible securities actually issued) for the ~~treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions~~ total number of shares of ~~such Class A common stock. The Company shall not issue any rights, options~~ Common Stock offered (or ~~warrants in respect of shares of Class A common stock held in~~ the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities offered). (c) In case the Company shall distribute to all holders of ~~Class A common stock~~ its Common Stock any shares of ~~capital stock~~ Capital Stock of the Company (other than ~~Class A common stock),~~ Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all holders of its Common Stock, rights, warrants or options ~~or warrants entitling the holders thereof~~ to subscribe for or purchase any of its securities (~~other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but~~ excluding (i) ~~dividends or distributions paid exclusively~~ rights, options and warrants referred to in ~~cash except as described in subsection (d~~Section 10.06(b) ~~below,~~ above; (ii) those dividends, distributions, subdivisions and combinations referred to in Section 10.06(a) above; and (iii) dividends and distributions ~~described~~ paid in ~~subsection~~ cash in an aggregate amount that, combined together with (aA) ~~above~~ all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 10.06 and (~~iii~~B) ~~distributions~~ the fair market value of consideration payable in ~~connection with~~ respect of any repurchases by way of tender or exchange offers by the ~~consolidation~~Company or any of its Subsidiaries or Affiliates, ~~merger or transfer~~ of ~~assets covered by~~ Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section ~~9.11~~10.06, does not exceed 5% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the ~~Current Market Price~~ current market price per share (~~determined~~ as ~~provided~~ defined in ~~subsection (f~~Section 10.06(e) below) of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of ~~Directors~~Directors of the Company, whose determination shall be conclusive evidence of such fair market ~~value and described in a board resolution~~value) of the portion of the Capital Stock or evidences of indebtedness, ~~shares~~ securities or assets so distributed or of ~~capital stock, cash,~~ such rights~~, options~~, warrants or ~~other assets so distributed applicable~~ options, in each case as applicable, to one share of ~~Class A common stock~~ Common Stock, and the denominator of which shall be the current market price per share (~~determined on the basis~~ as defined in Section 10.06(e) below) of the ~~number of shares of the Class A common stock outstanding~~ Common Stock on ~~the~~ such record date~~), and of which the denominator shall be such Current Market Price of the Class A common stock~~. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries shall repurchase by way of a tender or exchange offer shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for ~~Class A common stock concluded~~ such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid within the 12 twelve (12) months preceding the ~~Distribution Record Date and~~ date of purchase of such shares of Common Stock in respect of which no ~~Conversion Price~~ adjustment pursuant to ~~subsections (c) or (e) of~~ this Section or 10.06 previously has been made, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this ~~subsection~~ paragraph (d) within the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 10.06 previously has been made, exceeds ~~12 1/2~~5% of ~~the product of the Current~~ Market ~~Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ Capitalization on the ~~Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)~~date of, and after giving effect to, such repurchase, then the Conversion Price shall be ~~reduced~~ adjusted so that the same shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the ~~effectiveness~~ date of ~~the Conversion Price reduction contemplated by this subsection (d)~~ such purchase by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the ~~Current Market Price~~ current market price per share (~~determined~~ as ~~provided~~ defined in ~~subsection (f~~Section 10.06(e) ~~of this Section~~below) of the ~~Class A common stock~~ Common Stock on the ~~Distribution Record Date~~ date of such repurchase, less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined quotient obtained by dividing the ~~sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within~~ Aggregate Market Premium involved in such ~~12 months~~ repurchase (~~including, without limitation, the distribution in respect of which such adjustment is being made~~as defined hereinafter) by the difference between the number of shares of ~~Class A common stock~~ Common Stock outstanding on before such repurchase and the ~~Distribution Record Date)~~ number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be ~~such Current Market Price~~ the current market price per share (~~determined~~ as ~~provided~~ defined in ~~subsection (f~~Section 10.06(e) ~~of this Section~~below) of the ~~Class A common stock~~ Common Stock on the ~~Distribution Record Date,~~ date of such ~~reduction to~~ repurchase. Such adjustment shall become effective immediately ~~prior~~ after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for all such Common Stock over the aggregate current market value per share of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the ~~opening~~ date of ~~business on the day following the Distribution Record Date~~repurchase with respect to such share. (e) ~~In case a tender offer~~ For the purpose of any computation under Section 10.06(b), (c) and (d) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices per share of Common Stock for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or other ~~negotiated transaction made by Company or any Subsidiary~~ event requiring such computation. (f) If the rights provided for in the Company's rights agreement dated as of ~~Company for all or any portion~~ May 4, 2000, as amended, (the "Stockholder Rights Plan") have separated from the Company's Common Stock in accordance with the provisions of the ~~Class A common stock shall~~ Stockholder Rights Plan so that the Holders of the Securities would not be ~~consummated, if an Excess Payment is made~~ entitled to receive any rights in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders Common Stock issuable upon conversion of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offerSecurities, ~~as the case may be (the "Purchase Date"), and as to which no adjustment in~~ the Conversion Price ~~pursuant to subsection~~ will be adjusted as provided in paragraph (c) above, subject to readjustment in the event of the expiration, termination or ~~(d)~~ redemption of ~~this Section or this subsection (e) has been made plus (y)~~ the ~~aggregate amount of all Excess Payments in respect~~ rights. In lieu of any ~~other tender offers~~ such adjustment, the Company may amend its Stockholder Rights Plan to provide that upon conversion of the Securities the Holders will receive, in addition to Common Stock issuable upon such conversion, the rights which would have attached to such shares of Common Stock if the rights had not become separated from the Common Stock under the Company's Stockholder Rights Plan. To the extent that the Company adopts any future rights plan, upon conversion of the Securities into Common Stock, Securityholders will receive, in addition to Common Stock, the rights under the future rights plan whether or ~~other negotiated transactions by Company or any~~ not the rights have separated from the Common Stock at the time of ~~its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date~~ conversion and ~~in respect of which~~ no adjustment in to the Conversion Price ~~pursuant to subsection~~ will be made in accordance with paragraph (c~~) or (d) of~~ ). In any case in which this Section ~~or this subsection~~ 10.06 shall require that an adjustment be made immediately following a record date established for purposes of Section 10.06, the Company may elect to defer (~~e) has been made, exceeds 12 1/2%~~ but only until five Business Days following the filing by the Company with the Trustee of the ~~product~~ certificate described in Section 10.06) issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the ~~Current Market Price per share (determined as provided in subsection (f)~~ Company issuable upon such conversion over and above the shares of ~~this Section)~~ Common Stock and other Capital Stock of the ~~Class A common stock~~ Company issuable upon such conversion only on the ~~Purchase Date multiplied by~~ basis of the ~~number~~ Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares. If after an adjustment a Holder of a Security upon conversion of such Security may receive shares of ~~Class A common stock outstanding on~~ two or more classes of Capital Stock of the ~~Purchase Date (including any tendered shares but excluding any shares held in the treasury of~~ Company), the Conversion Price shall thereafter be ~~reduced so that~~ subject to adjustment upon the ~~same shall equal the price determined by multiplying~~ occurrence of an action taken with respect to any such ~~Conversion Price in effect immediately prior to the effectiveness~~ class of ~~the Conversion Price reduction~~ Capital Stock as is contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable Article 10 with respect to ~~outstanding shares of Class A common stock within such 12 months (including~~the Common Stock, ~~without limitation, the Excess Payment~~ on terms comparable to those applicable to Common Stock in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this ~~Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date~~Article 10.

Appears in 2 contracts

Samples: Indenture (Kaydon Corp), Indenture (Kaydon Corp)

Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion ~~Price~~ Price") for a series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of ~~Class A common stock to holders~~ Common Stock on any class of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Capital Stock of the Company, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine or reclassify its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.outstanding (b) In case the Company shall issue rights, options or warrants to all holders of ~~Class A common stock~~ Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ then current market price per share (as determined pursuant to subsection (f) below) of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (1) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights, options or warrants by a ~~fraction~~ fraction, of ~~which~~ which (2) the numerator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of ~~which~~ which (3) the denominator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of ~~Class A common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)h) below, after the ~~number~~ record date for the determination of ~~shares of Class A common stock at~~ holders entitled to receive such rights, options or warrants; provided, however, that if any ~~time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of~~ such ~~Class A common stock. The Company shall not issue any~~ rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the ~~Board~~ Company as described in this subsection (b) are only exercisable upon the occurrence of ~~Directors~~certain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur. (c) In case the Company or any Subsidiary of the Company shall distribute to all holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ Common Stock evidences of indebtedness, ~~cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (~~shares of Capital Stock other than ~~rights~~Common Stock, ~~options or warrants described in subsection (b) above)~~ cash or other assets (including ~~securities of Persons~~ securities, but other than ~~Company but excluding~~ (ix) regular dividends or distributions paid exclusively in cash ~~except as described~~ or (y) any dividend or distribution for which an adjustment is required to be made in ~~subsection (d) below, (ii) dividends and distributions described in~~ accordance with subsection (a) ~~above and~~ or (~~iii~~b) ~~distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11~~above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ then current market price per share (determined as provided in subsection (f) below) of the (d) In case the ~~Class A common stock~~ Company or any Subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 1505 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the produce of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date ~~mentioned below less~~ of such distribution, then in each such case the ~~fair~~ Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market ~~value~~ price per share of the Common Stock on such record date ~~(as determined by~~ less the ~~Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution)~~ amount of the ~~portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets~~ cash so distributed applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock. Such adjustment shall become effective ~~immediately~~ immediately, except as provided in subsection (h) below, after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 1504 to all holders of Common Stock within the 12 months preceding the expiration (f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "ex date," with respect to the issuance, distribution or Offer requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer. (g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. In the event the Company elects to make such a reduction in the Conversion Price, the Company will comply with the requirements of Rule 14e-1 of the Securities Exchange Act of 1934, as amended and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price of the Notes; provided, however, that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws. (h) In any case in which this Section 1504 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a (i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price; provided, however, that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fifteen shall be made to the nearest cent or to the nearest one- hundredth of a share, as the case may be. (j) Whenever the Conversion Price is adjusted as herein provided, the Company shall ~~distribute rights~~promptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, ~~options~~ which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) give or cause to be given a notice of such adjustment to each Holder of Securities in the manner provided in Section 106. (k) In the event that the Company distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 1504 to the extent this paragraph (k) applies thereto) or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in subsection (b) above) ~~("Rights")~~ pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company ~~may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6~~ shall make proper provision so that the ~~holder~~ Holder of ~~the Note who converts the Note (or~~ any ~~portion thereof) after the record date~~ Security surrendered for ~~such distribution and prior to the expiration or redemption of the Rights shall~~ conversion will be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of ~~Rights~~ rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of ~~Rights~~ rights or warrants of separate certificates evidencing such ~~Rights~~ rights or warrants (the "Distribution Date"), the same number of ~~Rights~~ rights or warrants to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the ~~Rights;~~ rights or warrants, and (ii) if such conversion occurs after ~~the~~ such Distribution Date, the same number of ~~Rights~~ rights or warrants to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of ~~the Note~~ such Security so converted was convertible immediately prior to ~~the~~ such Distribution Date would have been entitled on ~~the~~ such Distribution Date in accordance with the terms and provisions of and applicable to the ~~Rights.~~ rights or warrants. If any of the following shall occur, namely: (da) ~~In case Company shall~~any reclassification or change of outstanding shares of Common Stock issuable upon conversion of any Securities (other than a change in par value, ~~by dividend~~ or ~~otherwise~~from par value to no par value, ~~at any time make~~ or from no par value to par value, or as a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part result of a ~~distribution requiring~~ subdivision or combination), (b) any consolidation or merger of the Company with or into any other Person, or the merger of any other Person with or into the Company (other than a ~~Conversion Price adjustment pursuant to subsection~~ merger which does not result in any reclassification, change, conversion, exchange or cancellation of outstanding shares of Common Stock) or (c) any conveyance, transfer or lease of ~~this Section) in~~ the properties and assets of the Company substantially as an ~~aggregate amount that~~entirety, ~~together with~~ then the ~~sum~~ Company, or such successor or purchasing entity, as the case may be, shall, as a condition precedent to such reclassification, change, consolidation, merger, conveyance, transfer or lease, execute and deliver to the Trustee a supplemental indenture providing that the Holder of ~~(x)~~ each Security then outstanding shall have the ~~aggregate~~ right to convert such Security only into the kind and amount of ~~any~~ shares of stock and other ~~distributions made exclusively in cash to all holders~~ securities and property (including cash) receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease by a holder of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of ~~Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury~~ Common Stock issuable upon conversion of ~~Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying~~ such ~~Conversion Price in effect~~ Security immediately prior to ~~the effectiveness~~ such reclassification, change, consolidation, merger, conveyance, transfer or lease assuming such holder of Common Stock of the ~~Conversion Price reduction contemplated by this subsection~~ Company failed to exercise his rights of an election, if any, as to the kind or amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease (~~d) by a fraction~~ provided that if the kind or amount of ~~which~~ securities, cash and other property receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease is not the ~~numerator shall be the Current Market Price per~~ same for each share ~~(determined as provided in subsection (f)~~ of ~~this Section)~~ Common Stock of the ~~Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed~~Company held immediately prior to such reclassification, ~~paid~~ change, consolidation, merger, conveyance, transfer or ~~payable within such 12-month period (including, without limitation, the distribution~~ lease in respect of which such ~~adjustment is being made) applicable~~ rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 1505 the kind and amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease by each non-electing share shall be deemed to ~~one~~ be the kind and amount so receivable per share by a plurality of ~~Class A common stock (~~the non-electing shares). Such supplemental indenture shall provide for adjustments which shall be ~~determined by dividing~~ as nearly equivalent as may be practicable to the ~~sum~~ adjustments provided for in this Article Fifteen. If, in the case of ~~the aggregate amount of cash and the aggregate Excess Payments so distributed~~any such consolidation, ~~paid~~ merger, conveyance, transfer or ~~payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation~~lease, the ~~distribution~~ stock or other securities and property (including cash) receivable thereupon or in ~~respect of which such adjustment is being made)~~ connection therewith by ~~the number~~ a holder of shares of ~~Class A common~~ Common Stock includes shares of stock ~~outstanding on the Distribution Record Date)~~ or other securities and ~~the denominator shall be such Current Market Price per share~~ property (~~determined as provided in subsection (f~~including cash) of ~~this Section) of~~ a Person other than the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer successor or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offerpurchasing Person, as the case may be, in such consolidation, merger, conveyance, transfer or lease, then such supplemental indenture shall also be (executed by such other Person and shall contain such additional provisions to protect the ~~"Purchase Date"), and~~ interests of the Holders of the Securities as ~~to which no adjustment in~~ the ~~Conversion Price pursuant to subsection (c) or (d)~~ Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 1505 shall similarly apply to successive consolidations, mergers, conveyances, transfer or ~~this subsection (e) has been made plus (y)~~ leases. Notice of the ~~aggregate amount~~ execution of ~~all Excess Payments~~ each such supplemental indenture shall be given to each Holder of Securities in ~~respect~~ the manner provided in Section 106. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any ~~other tender offers or other negotiated transactions by Company or~~ provisions contained in any ~~of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant~~ such supplemental indenture relating either to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.the

Appears in 2 contracts

Samples: Subordinated Indenture (Newfield Exploration Co /De/), Subordinated Indenture (Newfield Financial Trust Ii)

Adjustment of Conversion Price. ~~The Conversion Price~~ Unless otherwise specified as contemplated by Section 2.02 for Securities of that series, the conversion price for Securities convertible into Common Stock shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case ~~Company~~ Ventas, Inc. shall (i1) pay a dividend or make a distribution on Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the ~~Conversion Price in effect immediately prior to such action~~ conversion price for the Securities of that series shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any such Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above had such ~~action had the Note~~ Security been converted immediately prior ~~thereto~~to the record date in the case of a dividend or distribution or the effective date in the case of subdivision or combination. ~~Any~~ An adjustment made pursuant to this ~~subsection~~ paragraph (a) shall become effective immediately after the record date in the case of a dividend or ~~distribution~~ distribution, except as provided in paragraph (h) below, and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case ~~Company~~ Ventas, Inc. shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Stock (as ~~determined pursuant to subsection~~ defined for purposes of this paragraph (fb) in paragraph (e) below~~) of the Class A common stock on~~ ), at the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive such ~~rights, options~~ rights or warrants, the ~~Conversion Price~~ conversion price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the total number of shares of ~~Class A common stock~~ Common Stock so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and the denominator of which ~~the denominator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants plus the number of additional shares of ~~Class A common stock so offered for subscription~~ Common Stock receivable upon exercise of such rights or ~~purchase (or into which the convertible securities so offered are convertible)~~warrants. Such ~~adjustments~~ adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective ~~immediately~~ immediately, except as provided in paragraph (h) below, after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any ~~rights, options~~ rights or warrants entitle the ~~holders~~ Holders of the Securities of that series to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock at less than ~~the Current Market Price~~such current market price, and in determining the aggregate offering price of such shares of ~~Class A common stock~~Common Stock, there shall be taken into account any consideration received by ~~Company~~ Ventas, Inc. for such ~~rights, warrants,~~ rights or ~~options~~warrants plus the exercise price thereof, the value of such ~~consideration~~consideration or exercise price, as the case may be, if ~~any,~~ other than cash, to be determined by the Board of Directors. (c) In case ~~Company~~ Ventas, Inc. shall distribute to all holders of ~~Class A common stock~~ Common Stock any shares of ~~capital stock~~ Capital Stock of ~~Company~~ Ventas, Inc. (other than ~~Class A common stock),~~ Common Stock) or evidences of ~~indebtedness~~its indebtedness or assets (excluding cash dividends or distributions paid from retained earnings of Ventas, ~~cash, rights, options~~ Inc.) or rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase any of its securities (~~other than rights, options~~ excluding those rights or warrants ~~described~~ referred to in ~~subsection~~ paragraph (b) above) ~~or other assets~~ (~~including securities~~ any of ~~Persons other than Company but excluding~~ the foregoing being herein in this paragraph (ic) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with called the ~~consolidation, merger or transfer of assets covered by Section 9.11~~“Special Securities”), ~~then~~ then, in each such ~~case~~ case, unless Ventas, Inc. elects to reserve such Special Securities for distribution to the ~~Conversion Price~~ Holders of Securities of that series upon the conversion so that any such Holder converting such Securities will receive upon such conversion, in addition to the shares of Common Stock to which such Holder is entitled, the amount and kind of Special Securities which such Holder would have received if such Holder had, immediately prior to the record date for the distribution of the Special Securities, converted Securities into Common Stock, the conversion price shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the date of such distribution by a fraction the numerator of which ~~the numerator~~ shall be the ~~Current Market Price~~ current market price per share (~~determined~~ as ~~provided~~ defined for purposes of this paragraph (c) in ~~subsection~~ paragraph (fe) below) of ~~the Class A common stock~~ Common Stock on the record date mentioned ~~below~~ above less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination ~~shall~~ shall, if made in good faith, be ~~conclusive evidence of such fair market value and described in a board resolution~~conclusive) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets~~ Special Securities so distributed applicable to one share of ~~Class A common stock~~ Common Stock, and the denominator of which shall be the current market price per share (~~determined on~~ as defined in paragraph (e) below) of Common Stock; provided, however, that in the ~~basis~~ event the then fair market value (as so determined) of the ~~number of shares~~ portion of the ~~Class A common stock outstanding~~ Special Securities so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share (as defined in paragraph (e) below) of Common Stock on the record ~~date)~~date mentioned above, ~~and~~ in lieu of ~~which~~ the ~~denominator~~ foregoing adjustment, adequate provision shall be made so that each Holder of Securities of that series shall have the right to receive the amount and kind of Special Securities such ~~Current Market Price~~ Holder would have received had such Holder converted such Securities immediately prior to the record date for the distribution of the ~~Class A common stock~~Special Securities. Such adjustment shall become effective ~~immediately~~ immediately, except as provided in paragraph (h) below, after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution~~. Notwithstanding~~ . (d) If, pursuant to paragraph (b) or (c) above, the ~~foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional~~ number of shares of ~~Company's capital stock~~ Common Stock shall have been adjusted because Ventas, Inc. has declared a dividend, or made a distribution, on the outstanding shares of Common Stock in the form of any right or warrant to purchase securities of Ventas, Inc., or Ventas, Inc. has issued any such right or warrant, then, upon the expiration of any such unexercised right or unexercised warrant, the conversion price shall forthwith be adjusted to equal the conversion price that would have applied had such right or warrant never been declared, distributed or issued. (~~other than rights, options or warrants referred to in subsection~~ e) For the purpose of any computation under paragraph (b) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the reported last sales prices for the 30 consecutive Trading Days (as defined below) commencing 45 Trading Days before the date in question. For the purpose of any computation under paragraph (~~"Rights"~~c) above, the current market price per share of Common Stock on any date shall be deemed to ~~all holders~~ be the average of ~~Class A common stock~~the reported last sales prices for the 10 consecutive Trading Days before the date in question. The reported last sales price for each day (whether for purposes of paragraph (b) or paragraph (c)) shall be the reported last sales price, ~~Company may~~regular way, or, in ~~lieu~~ case no sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System (“NASDAQ”) or, if the Common Stock is not quoted on such National Market System, the average of the closing bid and asked prices on such day in the over-the-counter market as reported by NASDAQ or, if bid and asked prices for the Common Stock on each such day shall not have been reported through NASDAQ, the average of the bid and asked prices for such day as furnished by any New York Stock Exchange member firm regularly making ~~any adjustment pursuant~~ a market in the Common Stock selected for such purpose by the Board of Directors of Ventas, Inc. or a committee thereof or, if no such quotations are available, the fair market value of the Common Stock as determined by a New York Stock Exchange Member firm regularly making a market in the Common Stock selected for such purpose by the Board of Directors of Ventas, Inc. or a committee thereof or, if no such quotations are available, the fair market value of the Common Stock as determined by a New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Board of Directors of Ventas, Inc. or a committee thereof. As used herein, the term “Trading Day” with respect to the ~~foregoing~~ Common Stock means (1) if the Common Stock is listed or admitted for trading on the New York Stock Exchange or another national securities exchange, a day on which the New York Stock Exchange or such other national securities exchange is open for business or (2) if the Common Stock is quoted on the National Market System of the NASDAQ, a day on which trades may be made on such National Market System or (3) otherwise, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (f) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and, provided, further, that adjustment shall be required and made in accordance with the provisions of this ~~subsection~~ Article 12 (cother than this paragraph (f)) not later than such time as may be required in order to preserve the tax free nature of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a ~~number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the~~ distribution to the holders of ~~Rights of separate certificates evidencing such Rights (~~Common Stock. All calculations under this Article 12 shall be made to the ~~"Distribution Date"),~~ nearest cent or to the ~~same number of Rights to which a holder~~ nearest 1/100 of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be, with one-half cent and 1/200 of a share, respectively, being rounded upward. Anything in this Section 12.05 to the contrary notwithstanding, Ventas, Inc. shall be entitled to make such reductions in the conversion price, in addition to those required by this Section 12.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or distribution of other assets (other than cash dividends) hereafter made by Ventas, Inc. to its stockholders shall not be taxable. (g) Whenever the ~~"Purchase Date")~~conversion price is adjusted, as herein provided, Ventas, Inc. shall promptly file with the Trustee, at the corporate trust office of the Trustee, and ~~as to which no adjustment in~~ with the ~~Conversion Price~~ office or agency maintained by Ventas, Inc. for the conversion of Securities of that series pursuant to ~~subsection (c) or (d) of this~~ Section ~~or this subsection (e) has been made plus (y)~~ 4.02, an Officers’ Certificate, setting forth the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date conversion price after such adjustment and ~~in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2%~~ setting forth a brief statement of the ~~product~~ facts requiring such adjustment, which certificate shall be conclusive evidence of the ~~Current Market Price per share (determined as provided in subsection (f)~~ correctness of ~~this Section) of~~ such adjustment. Neither the ~~Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including~~ Trustee nor any ~~tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ conversion agent shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid under any duty or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable responsibility with respect to ~~outstanding shares~~ any such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Holder of ~~Class A common stock within such 12 months~~ a Security of that series desiring to inspect the same. Ventas, Inc. shall promptly cause a notice setting forth the adjusted conversion price to be mailed to the Holders of Securities of that series, as their names and addresses appear upon the Security Register of Ventas, Inc. (~~including, without limitation, the Excess Payment~~ h) In any case in ~~respect of~~ which ~~such~~ this Section 12.05 provides that an adjustment ~~is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator~~ shall ~~be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to~~ become effective immediately ~~prior~~ after a record date for an event, Ventas, Inc. may defer until the occurrence of such event (1) issuing to the ~~opening~~ Holder of ~~business on~~ any Security of that series converted after such record date and before the ~~day following~~ occurrence of such event the ~~Purchase Date~~additional shares of the Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (2) paying to such Holder any amount in cash in lieu of any fractional share of Common Stock pursuant to Section 12.06 hereof.

Appears in 2 contracts

Samples: Indenture (Ventas Inc), Indenture (Ventas Realty Limited Partnership)

Adjustment of Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company ~~shall~~ shall, at any time or from time to time while the Securities of any series are outstanding, (i) pay a dividend on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a ~~greater~~ larger number of ~~shares of Class A common stock~~ shares, or (iviii) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price for such series in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security of such series thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock or other securities of the Company which he would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above, had such ~~action had the Note~~ Convertible Security of such series been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection~~ subdivision (a) shall become ~~effective immediately after the record date~~ effective, in the case of a ~~dividend or distribution~~ dividend, on the payment date retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such dividend, subject to the provisions of paragraph (g) of this Section 1505, and shall become effective ~~immediately after the effective date~~ in the case of a subdivision or combination immediately after the opening of business on the day following the day when such subdivision or combination, as the case may be, becomes effective. (b) In case the Company ~~shall~~ shall, at any time or from time to time while the Convertible Securities of any series are outstanding, issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ its shares of Common Stock entitling them (for a period expiring within 45 days of the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Stock (as ~~determined pursuant to subsection~~ defined in paragraph (fd) below) ~~of the Class A common stock on the~~ at such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion Price ~~shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ of any series of Convertible Securities in effect immediately prior to the issuance of such ~~record date~~ rights or warrants shall be adjusted as follows: the number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series was theretofore convertible shall be multiplied by a ~~fraction~~ fraction, of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business on~~ immediately prior to such record date plus the number of additional shares of ~~Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so~~ Common Stock offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or ~~purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)~~purchase, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on immediately prior to such record date plus the number of ~~additional~~ shares which the aggregate offering price of ~~Class A common stock~~ the total number of shares so offered would purchase at such current market price; and the Conversion Price for ~~subscription or purchase (or~~ such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares into which ~~the~~ $1,000 principal amount of Securities of such series shall be convertible ~~securities so offered are convertible)~~as aforesaid. Such ~~adjustments~~ adjustment shall become effective on the date of such issuance retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such ~~record date. For~~ rights or warrants, subject to the ~~purposes~~ provisions of paragraph (g) of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of CompanySection 1505. In determining whether any ~~rights, options~~ rights or warrants entitle the holders to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock at less than ~~the Current Market Price~~such current market price, and in determining the aggregate offering price of such ~~shares of Class A common stock~~shares, there shall be taken into account any consideration received by the Company for such ~~rights,~~ rights or warrants~~, or options~~, the value of such consideration, if ~~any,~~ other than cash, to be determined by the Board of Directors. (c) In case the Company ~~shall~~ shall, at any time from time to time while the Convertible Securities of any series are outstanding, distribute to all holders of ~~Class A common stock~~ shares of ~~capital stock of Company (other than Class A common stock),~~ its Common Stock evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or securities or assets (excluding cash dividends or cash distributions payable out of consolidated net earnings or retained earnings) or rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase securities (other~~ shares of Common Stock at a price per share less than ~~rights~~the current market price per share of Common Stock, ~~options or warrants described~~ determined in ~~subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively~~ the manner set forth in ~~cash except as described in subsection~~ paragraph (d) below, but excluding rights or warrants referred to in paragraph (iib) ~~dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation~~above, ~~merger or transfer of assets covered by Section 9.11), then in each such case~~ the Conversion Price ~~shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ for such series of Convertible Securities in effect immediately prior to such distribution shall be adjusted by multiplying the ~~date~~ number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such ~~distribution~~ series of Convertible Securities was theretofore convertible by a ~~fraction~~ fraction, of which the numerator shall be the ~~Current Market Price~~ current market price per share of Common Stock (~~determined~~ as ~~provided~~ defined in ~~subsection~~ paragraph (fd) below) ~~of the Class A common stock~~ on the record date ~~mentioned below less the fair market value on~~ for such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)distribution, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock, less the then fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive) of the portion of such evidences of indebtedness, securities or assets or of such subscription rights or warrants so distributed applicable to one share of Common Stock; and the Conversion Price for such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares into which $1,000 principal amount of Convertible Securities of such series shall be convertible as aforesaid. Such adjustment shall become effective on the date of such distribution retroactively to immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~record date for the determination of shareholders entitled to receive such distribution, subject to the provisions of paragraph (g) of this Section 1505. For the purposes of this paragraph (c) consolidated net earnings or retained earnings shall be computed by adding thereto all charges against retained earnings on account of dividends paid in shares of Common Stock in respect of which the Conversion Price has been adjusted, all as determined by Independent Public Accountants, whose determination shall be conclusive. (d) For the purpose of any computation under paragraphs (b) and (c) above, the current market price per share of Common Stock at any date shall be deemed to be the average of the market values of the shares of Common Stock for the ten consecutive Business Days immediately preceding the day in question. The market value of the Common Stock for each day shall be determined as provided in Section 1503 hereof. (e) ~~In case a tender offer or other negotiated transaction made~~ The Company may make such reductions in the Conversion Price for any series of Convertible Securities, in addition to those required by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of paragraphs (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"a), (b) and (c) of this Section as it considers to ~~which~~ be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients. (f) Except as herein otherwise provided, no adjustment in the Conversion Price ~~pursuant~~ for any series of Convertible Securities shall be made by reason of the issuance, in exchange for cash, property or services, of shares of Common Stock, or any securities convertible into or exchangeable for shares of Common Stock, or carrying the right to ~~subsection~~ purchase any of the foregoing. (cg) If the Company shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive any dividend or ~~(d) of this Section~~ any subscription or ~~this subsection (e) has been made plus (y)~~ purchase rights or any distribution and shall, thereafter and before the ~~aggregate amount of all Excess Payments in respect~~ distribution to shareholders of any ~~other tender offers~~ such dividend, subscription or ~~other negotiated transactions~~ purchase rights or distribution, legally abandon its plan to pay or deliver such dividend, subscription or purchase rights or distribution, then no adjustment of the Conversion Price for any series of Convertible Securities shall be required by ~~Company or any~~ reason of ~~its Subsidiaries for Class A common stock concluded within~~ the ~~12 months preceding the Purchase Date and in respect~~ taking of ~~which no~~ such record. (h) No adjustment in the Conversion Price ~~pursuant to subsection (c)~~ for any series of Convertible Securities shall be required unless such adjustment would require an increase or ~~(d)~~ decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this ~~Section~~ paragraph (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fifteen shall be made to the nearest cent or ~~this subsection~~ to the nearest one-hundredth of a share, as the case may be. (ei) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), Whenever the Conversion Price for any series of Convertible Securities is adjusted as herein provided, the Company shall ~~be reduced so that~~ (i) forthwith place on file at the ~~same shall equal~~ Principal Office of the ~~price determined by multiplying~~ Trustee an Officers' Certificate showing in detail the facts requiring such ~~Conversion Price in effect immediately prior to the effectiveness of~~ adjustment and the Conversion Price ~~reduction contemplated by this subsection~~ after such adjustment and shall exhibit the same from time to time to any Holder of Convertible Securities of such series desiring an inspection thereof, and (eii) by cause a ~~fraction~~ notice stating that such adjustment has been effected and the adjusted Conversion Price to be mailed to the Holders of ~~which~~ Registered Convertible Securities of such series at their last addresses as they shall appear on the ~~numerator shall be the Current Market Price per share~~ Security Register. (~~determined as provided in subsection (f~~j) ~~of this Section)~~ The Company may delete, modify or vary any of the ~~Class A common stock on the Purchase Date less the sum~~ provisions applicable to conversion of the ~~aggregate amount~~ Convertible Securities of ~~cash~~ any series, or may add new provisions applicable thereto, all as may be contained in the Board Resolutions and ~~the aggregate Excess Payments so distributed, paid~~ Officers' Certificate or ~~payable within~~ supplemental indenture establishing such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateseries.

Appears in 2 contracts

Samples: Senior Indenture (National City Corp), Senior Indenture (National City Corp)

Adjustment of Conversion Price. The conversion price (herein called "Conversion ~~Price~~ Price") shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i1) pay a dividend in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii2) ~~make~~ making a distribution in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~iii~~3) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares of ~~Class A common stock~~ Common Stock or (iv4) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares of ~~Class A common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he would have owned immediately following such action had ~~the Note~~ such Securities been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to substantially all holders of ~~Class A common stock entitling~~ Common Stock entitled them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such right or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price per share~~ current market price (as determined pursuant to subsection (fd) below) of the ~~Class A common stock~~ Common Stock on ~~the~~ such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion ~~Price~~ Prices shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record ~~date~~ date, plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of ~~Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to all holders of ~~Class A common stock~~ Common Stock shares of ~~capital~~ any class of stock other than Common Stock, evidences of ~~Company~~ indebtedness or other assets (other than ~~Class A common stock~~cash dividends out of current or retained earnings), ~~evidences~~ or shall distribute to substantially all holders of ~~indebtedness, cash, rights, options~~ Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price (determined as provided in subsection (fd) ~~below)~~ below of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of ~~Directors~~Directors of the Company, whose determination shall be conclusive evidence of such fair market ~~value and described in a board resolution~~value) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price of the ~~Class A common stock~~Common Stock. Such ~~adjustment~~ adjustments shall become effective immediately after the record date for the determination of the holders of ~~Class A common stock~~ Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in subsection (b) above) ("Rights") pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 4.06, make proper provision so that ~~the~~ each holder of ~~the Note~~ a Security who converts ~~the Note~~ such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of the ~~Note~~ Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of ~~and~~ an applicable to the Rights. (d) ~~In case Company shall, by dividend or otherwise, at~~ The current market price per share of Common Stock on any ~~time make a distribution~~ date shall be deemed to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with be the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% average of the ~~product of~~ daily closing prices for thirty consecutive trading days commencing forty-five trading days before the ~~Current Market Price per share (determined as provided~~ day in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the question. The closing price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator for each day shall be the ~~Current Market Price per share (determined as provided in subsection (f) of this Section)~~ closing sale price of the ~~Class A common stock~~ Common Stock, or in case no reported sale takes place, the average of the closing bid and asked prices, on NASDAQ or any comparable system, or if the Common Stock is not quoted on NASDAQ or any comparable system, the last reported sales price regular way or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices regular way, in either case on the ~~Distribution Record Date less~~ New York Stock Exchange, or if the ~~sum~~ Common Stock is not listed or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the closing sale price or, in case no reported sale takes place, the average of the ~~aggregate amount of cash~~ closing bid and ~~the aggregate Excess Payments so distributed~~asked prices, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined as furnished by ~~dividing the sum~~ any two members of the ~~aggregate amount~~ National Association of ~~cash and the aggregate Excess Payments so distributed~~Securities Dealers, ~~paid or payable with respect~~ Inc. selected from time to ~~outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made)~~ time by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateCompany for that purpose. (e) In any case in which this Section 4.06 shall require that an adjustment be made immediately following a ~~tender offer or other negotiated transaction made~~ record date, the Company may elect to defer (but only until five Business days following the filing by the Company ~~or any Subsidiary of Company for all or any portion~~ with the Trustee of the ~~Class A common stock shall be consummated, if an Excess Payment is made~~ certificate described in ~~respect of such tender offer or other negotiated transaction and~~ Section 4.10 below) issuing to the ~~aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount~~ holder of any ~~distributions, by dividend or otherwise, to all holders~~ Security converted after such record date the shares of Common Stock and other capital stock of the ~~Class A common~~ Company issuable upon such conversion over and above the shares of Common Stock and other capital stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ Company issuable upon such conversion only on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness basis of the Conversion Price ~~reduction contemplated by this subsection (e) by a fraction~~ prior to adjustment; and, in lieu of the shares the issuance of which is do deferred, the ~~numerator~~ Company shall ~~be the Current Market Price per share (determined as provided in subsection (f) of this Section)~~ issue or cause its transfer agents to issue due bills or other appropriate evidence of the ~~Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within~~ right to receive such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateshares.

Appears in 2 contracts

Samples: Indenture (Smurfit Stone Container Corp), Indenture (Smurfit Stone Container Corp)

Adjustment of Conversion Price. (1) The Conversion Price ~~shall~~ in effect at any date will be subject to adjustment from time to time ~~as follows~~in the events and in the manner provided in this Article 5. (2) If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation: (a) ~~In case Company shall~~ issues Common Shares or securities convertible into or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares as a stock dividend or otherwise; (ib) ~~pay~~ makes a ~~dividend~~ distribution on its outstanding Common Shares to the holders of all or substantially all of the outstanding Common Shares payable in ~~shares~~ Common Shares or securities convertible into or exchangeable for Common Shares (other than an issue of ~~Class A common stock~~ Common Shares to holders of ~~Class A common stock~~ Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course); (~~or any event treated as such for U.S. Federal income tax purposes), (ii~~c) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide~~ subdivides its outstanding ~~shares of Class A common stock~~ Common Shares into a greater number of ~~shares of Class A common stock~~ Common Shares; or (d) reduces, combines or ~~(iv) combine~~ consolidates its outstanding ~~shares of Class A common stock~~ Common Shares into a smaller number of ~~shares~~ Common Shares, (any of ~~Class A common stock~~such events in subsections (a), (b), (c) and (d) being called a “Common Share Reorganization”), then the Conversion Price then in effect ~~immediately prior to such action shall~~ will be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately ~~after the record date in the case of a dividend or distribution and shall become effective immediately after~~ on the effective date ~~in the case of a subdivision~~ or combination. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for ~~determining~~ the happening of a Common Share Reorganization, as the case may be, at which the holders of Common Shares are determined for the ~~Class A common stock entitled to receive such rights~~purpose of the Common Share Reorganization, ~~options or warrants, the Conversion Price shall be adjusted~~ so that ~~the same shall~~ it will equal the price determined by multiplying the Conversion Price in effect immediately prior to such effective date or record date by a ~~fraction~~ fraction, the numerator of which ~~the numerator shall~~ will be ~~the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of~~ the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Shares outstanding on such effective date or record date ~~plus~~ before giving effect to such Common Share Reorganization and the denominator of which will be the total number of ~~additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective~~ Common Shares outstanding immediately after giving effect to such ~~record date. For~~ Common Share Reorganization (including, in the ~~purposes of this subsection (b)~~case where securities exchangeable for or convertible into Common Shares are distributed, the number of ~~shares of Class A common stock~~ Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date). (3) If and whenever at any time ~~outstanding shall not include shares held in~~ after the ~~treasury~~ date hereof and prior to the Maturity Date, the Corporation fixes a record date for the issue of ~~Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any~~ rights, options or warrants ~~in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle~~ to the holders of all or substantially all of the outstanding Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (the “Rights Period”), to subscribe for or purchase ~~shares~~ Common Shares or securities exchangeable for or convertible into Common Shares at a price per share to the holder (or at an exchange price or conversion price per share during the Rights Period to the holder in the case of ~~Class A common stock at~~ securities exchangeable for or convertible into Common Shares) which is less than 95% of the Current Market ~~Price, and in determining~~ Price for the ~~aggregate offering price~~ Common Shares on such record date (any of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11events being called a “Rights Offering”), then ~~in each such case~~ the Conversion Price ~~shall~~ will be adjusted effective immediately after the end of the Rights Period so that ~~the same shall~~ it will equal the price determined by multiplying the Conversion Price in effect immediately prior to the ~~date~~ end of ~~such distribution~~ the Rights Period by a ~~fraction~~ fraction: (a) the numerator of which ~~the numerator shall~~ will be the ~~Current Market Price~~ aggregate of: (~~determined~~ i) the total number of Common Shares outstanding as ~~provided in subsection (f) below)~~ of ~~the Class A common stock on~~ the record date ~~mentioned below less~~ for the ~~fair market value on such record date~~ commencement of the Rights Offering, and (as ii) a number determined by dividing (I) either (x) the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis product of the number of ~~shares~~ Common Shares issued or subscribed for during the Rights Period upon the exercise of the ~~Class A common stock outstanding on~~ rights, warrants or options under the ~~record date)~~Rights Offering and the price at which such Common Shares are offered for such issue or subscription, or, as the case may be, (y) the product of the exchange price or conversion price of such securities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the ~~denominator shall be such~~ securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (II) the Current Market Price of the ~~Class A common stock~~Common Shares as of the record date for the commencement of the Rights Offering, and (b) the denominator of which will be the number of Common Shares outstanding, or the number of Common Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Common Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. ~~Such adjustment shall become effective~~ Any Debentureholder who has exercised the right to convert to Common Shares in accordance with Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption last day of the Rights ~~shall be entitled to receive upon such conversion~~Period for the Rights Offering will, in addition to the ~~shares of Class A common stock issuable~~ Common Shares to which that holder would otherwise be entitled upon such ~~conversion (the "Conversion Shares")~~conversion, a be entitled to that number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock additional Common Shares equal to the ~~number of Conversion Shares is entitled at~~ result obtained when the ~~time of such conversion in accordance with~~ difference, if any, between the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the ~~effectiveness~~ end of such Rights Offering and the Conversion Price ~~reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined~~ as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within adjusted for such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price Rights Offering pursuant to ~~subsection (c) or (d) of~~ this Section ~~or this subsection (e~~5.01(3) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date is multiplied by the number of ~~shares~~ Common Shares received upon the conversion of ~~Class A common stock outstanding~~ the Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price as adjusted for such Rights Offering pursuant to this Section 5.01(3); provided that the provisions of Section 4.03 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this Section 5.01(3). Such additional Common Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised on or before the ~~Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)~~expiry thereof, the Conversion Price ~~shall~~ will be ~~reduced~~ readjusted to the Conversion Price which would then be in effect based on the number of Common Shares (or the securities convertible into or exchangeable for Common Shares) actually delivered on the exercise of such rights, options or warrants. (4) If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation fixes a record date for the issue or the distribution to the holders of all or substantially all of the outstanding Common Shares of (i) securities of the Corporation, including rights, options or warrants to acquire securities of the Corporation or any of its property or assets and including cash and evidences of indebtedness; or (ii) any property or other assets, including cash and evidences of indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Share Reorganization, a Rights Offering or a distribution contemplated by Section 5.01(3) (any of such non-excluded events being called a “Special Distribution”), then the Conversion Price will be adjusted effective immediately after such record date so that ~~the same shall~~ it will equal the price determined by multiplying ~~such~~ the Conversion Price in effect ~~immediately prior to~~ on such record date by a fraction: (a) the ~~effectiveness~~ numerator of which will be: (i) the product of the ~~Conversion Price reduction contemplated by this subsection (e) by a fraction~~ number of ~~which the numerator shall be~~ Common Shares outstanding on such record date and the Current Market Price ~~per share (determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock~~ Common Shares on such record date; less (ii) the fair market value, as determined by action by the Board of Directors (whose determination, subject to the consent of a Recognized Stock Exchange, will be conclusive), to the holders of Common Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and (b) the denominator of which will be the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date. To the extent that any Special Distribution is not so made, the Conversion Price will be readjusted effective immediately to the Conversion Price which would then be in effect based upon such securities or property or other assets as actually distributed. (5) If and whenever at any time after the date hereof and prior to the Maturity Date, there is a reclassification of the Common Shares at any time outstanding or change of the Common Shares into other shares or into other securities or other capital reorganization (other than a Common Share Reorganization), or a consolidation, amalgamation or merger of the Corporation with or into any other corporation or other entity (other than a vertical short-form amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to the Canada Business Corporations Act), or a transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or other entity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events being called a “Capital Reorganization”), any Holder of Debentures who exercises the right to convert Debentures into Common Shares pursuant to Debentures then held after the effective date of such Capital Reorganization will be entitled to receive, and will accept for the same aggregate consideration in lieu of the number of Common Shares to which such Holder was previously entitled upon such conversion, the aggregate number of shares, other securities or other property that such holder would have been entitled to receive as a result of such Capital Reorganization if, on the ~~Purchase Date less~~ effective date thereof, the ~~sum~~ holder had been the registered holder of the ~~aggregate amount~~ number of ~~cash~~ Common Shares to which such holder was previously entitled upon conversion subject, however, to any requirements necessary to ensure that the interest payable on the Debentures will be and will remain exempt from Canadian withholding tax including the requirement in effect on the date hereof for so long as such requirement is in effect that a Holder of Debentures will not be entitled to receive shares, other securities or property other than securities that are “prescribed securities” as defined in Regulation 6208 to the Income Tax Act (Canada) on or prior to five years after the date of issue of the Debentures. Subject to the preceding sentence, the Corporation will take all steps necessary to ensure that, on a Capital Reorganization, the Holders of Debentures will receive the aggregate ~~Excess Payments so distributed~~number of shares, ~~paid~~ other securities or ~~payable within such 12 month period (including, without limitation, the Excess Payment in respect of~~ other property to which ~~such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum~~ they are entitled as a result of the ~~aggregate amount~~ Capital Reorganization. Appropriate adjustments will be made as a result of ~~cash and~~ any such Capital Reorganization in the ~~aggregate Excess Payments so distributed, paid or payable~~ application of the provisions set forth in this Article 5 with respect to ~~outstanding shares~~ the rights and interests thereafter of ~~Class A common stock within such 12 months (including~~Holders of Debentures to the end that the provisions set forth in this Article 5 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, ~~without limitation~~other securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the ~~Excess Payment~~ Corporation will enter into an indenture supplemental hereto approved by action of the Board of Directors and by the Trustee, relying on advice of counsel, that will set forth an appropriate adjustment to give effect to this Section 5.01(5), in ~~respect of~~ which event such adjustment will for all purposes be conclusively deemed to be an appropriate adjustment, subject to any required prior consent of a Recognized Stock Exchange. (6) If the purchase price provided for in any rights, options or warrants (the “Rights Offering Price”) referred to in Sections 5.01(3) or (4) is ~~being made~~decreased, the Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under Section 5.01(3) or (4), as the case may be, with respect to such rights, options or warrants had been made on the basis of the Rights Offering Price as so decreased, provided that the terms of this Section 5.01(6) will not apply to any decrease in the Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the extent that the resulting decrease in the Conversion Price under this Section 5.01(6) would be greater than the decrease, if any, in the Conversion Price to be made under the terms of this Section 5.01(6) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) virtue of the ~~Class A common stock on~~ occurrence of the ~~Purchase Date,~~ event giving rise to such ~~reduction to~~ decrease in the Rights Offering Price. (7) In any case in which this Section 5.01 requires that an adjustment will become effective immediately ~~prior~~ after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the ~~opening~~ Holder of ~~business~~ any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event, provided, however, that the Corporation will deliver to such Holder evidence of such Holder’s right to receive such additional Common Shares upon the occurrence of such event and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the ~~day following~~ date of conversion or such later date on which such Holder would, but for the ~~Purchase Date~~provisions of this Section 5.01(7), have become the holder of record of such additional Common Shares.

Appears in 2 contracts

Samples: First Supplemental Indenture (Stelco Inc /Fi), First Supplemental Indenture (Stelco Inc /Fi)

Appears in 1 contract

Samples: Subordinated Indenture (National City Corp)

Appears in 1 contract

Samples: Subordinated Indenture (Usa Waste Services Inc)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a) ~~In case~~ If the Company shall (i) pay a dividend or other distribution, in ~~shares~~ Common Stock, on any class of ~~Class A common stock to holders~~ Capital Stock of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~the Company, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (~~subdivide or ~~any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its~~ split the outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ by any means or (iviii) combine ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of shares ~~of Class A common stock~~by any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock that such Holder would have owned ~~immediately following~~ or have been entitled to receive upon the happening of such ~~action~~ event had ~~the~~ such Note been converted immediately prior ~~thereto~~to the relevant record date or, if there is no such record date, the effective date of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection (a~~Section 10.4(a) shall become effective immediately after the record date in for the ~~case~~ determination of a stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date ~~in the case~~ of a such subdivision or combination, as the case may be. (b) ~~In case~~ If the Company shall (i) issue ~~rights, options~~ or ~~warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock~~ distribute (~~or securities convertible into Class A common stock)~~ at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share of such Capital Stock on the date of such issuance or distribution) Capital Stock generally to holders of Common Stock or to holders of any class or series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (~~as determined pursuant~~ excluding an issuance or distribution of Common Stock described in Section 10.4(a)) or (ii) issue or distribute generally to ~~subsection~~ such holders rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for, purchase, convert into or exchange for Capital Stock at a price per share less than the Current Market Price per share of such Capital Stock on the date of issuance or distribution, then, in each such case, at the earliest of (fA) ~~below~~the date the Company enters into a firm contract for such issuance or distribution, (B) ~~of the Class A common stock on~~ the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities or (C) the date of actual issuance or distribution of any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities, the Conversion Price shall be ~~adjusted so that the same shall equal the price determined~~ reduced by multiplying the Conversion Price in effect immediately prior to such ~~record~~ earliest date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.by:

Appears in 1 contract

Samples: Purchase Agreement (Kapson Senior Quarters Corp)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted (without duplication) from time to time by the Company as follows: (a1) In case the Company shall (i) pay a dividend or other distribution in shares of ~~Class A common stock~~ Common Stock to all or substantially all holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii)~~ subdivide its outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iviii) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price ~~in effect immediately prior to such action~~ shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he it would have owned ~~immediately following~~ or been entitled to receive had such ~~action had the~~ Note been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ For the purposes of calculating the Conversion Price adjustment pursuant to this Section 8.5(1), Holders of a Note shall be treated as if they had the right to convert the Note solely into Common Stock at the then applicable Conversion Price. An adjustment made pursuant to this ~~subsection (a~~Section 8.5(1) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of ~~a subdivision~~ subdivision, combination or ~~combination~~reclassification. (b2) In case the Company shall issue ~~rights, options~~ to all or ~~warrants to~~ substantially all holders of ~~Class A common stock~~ Common Stock rights, warrants or options entitling ~~them~~ such holders (for a period expiring not more than 60 days after the date of distribution) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market~~ average Common Stock Price ~~per share (as determined pursuant to subsection (f) below)~~ for the 10 Trading Days immediately preceding the date the distribution of ~~the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive~~ such rights, warrants or options ~~or warrants~~was first publicly announced by the Company, the Conversion Price shall be ~~adjusted~~ decreased so that the ~~same~~ Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to ~~such~~ the record date for such issue by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such ~~record~~ date of public announcement, plus the number of shares ~~of Class A common stock~~ which the aggregate ~~offering~~ subscription or purchase price of for the total number of shares of ~~Class A common stock~~ Common Stock offered by the rights, warrants or options so ~~offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ issued (or the aggregate conversion price of the convertible securities ~~so offered~~offered by such rights, warrants or options) would purchase at such ~~Current Market Price~~ average Common Stock Price, and (~~as determined pursuant to subsection (f~~ii) ~~below), and~~ the denominator of which ~~the denominator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such ~~record~~ date of public announcement plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered ~~for subscription~~ by such rights, warrants or ~~purchase~~ options (or into which the convertible securities so offered by such rights, warrants or options are convertible), provided that no adjustment will be made if Holders of the Notes are entitled to participate in the distribution on substantially the same terms as holders of the Common Stock as if such Holders had converted their Notes solely into Common Stock immediately prior to such distribution at the then applicable Conversion Price. Such ~~adjustments~~ adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (~~b),~~ or the number of shares of ~~Class A common stock at any time outstanding shall not include shares held in~~ Common Stock issuable upon conversion of convertible securities actually issued) for the ~~treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions~~ total number of shares of ~~such Class A common stock. The Company shall not issue any rights, options~~ Common Stock offered (or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities offered). (c3) In case the Company shall distribute to all or substantially all holders of Common Stock any shares of Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, other securities or other assets, or shall distribute to all holders of ~~Class A common stock shares of capital stock of Company~~ Common Stock, rights (other than ~~Class A common stock~~the rights distributed pursuant to a Rights Plan, if any, to the extent that such rights have been distributed to the holders of the Notes as described below), ~~evidences of indebtedness, cash, rights,~~ warrants or options ~~or warrants entitling the holders thereof~~ to subscribe for or purchase any of its securities (~~other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but~~ excluding (i) ~~dividends or distributions paid exclusively~~ those rights, options and warrants referred to in ~~cash except as described in subsection (d) below,~~ Section 8.5(2); (ii) ~~dividends~~ those dividends, distributions, subdivisions and ~~distributions described~~ combinations referred to in ~~subsection (a) above~~ Section 8.5(1); and (iii) those dividends and distributions paid in ~~connection with the consolidation, merger or transfer of assets covered by~~ cash referred to in Section ~~9.11~~8.5(5)), then in each such case the Conversion Price shall be ~~adjusted~~ decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~Current~~ Market Price ~~(determined as provided in subsection (f) below) of the Class A common stock~~ on the record date ~~mentioned below~~ for the determination of holders of Common Stock entitled to receive such distribution less the fair market value on such record date (as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market ~~value and described in a board resolution~~value) of the portion of the Capital Stock or evidences of indebtedness, ~~shares~~ securities or assets so distributed or of ~~capital stock, cash,~~ such rights~~, options~~, warrants or options, in each case applicable to one share of Common Stock, and (ii) the denominator of which shall be the Market Price on such record date, such adjustment to become effective immediately after the record date for such distribution; provided that if the numerator of the foregoing fraction is less than $1.00 (including a negative amount), then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the cash and Common Stock issuable upon such conversion, as applicable, the distribution such Holder would have received had such Holder converted its Note solely into Common Stock at the then applicable Conversion Price immediately prior to the record date for such distribution; provided that no adjustment will be made if Holders of the Notes are entitled to participate in the distribution on substantially the same terms as holders of the Common Stock as if such Holders had converted their Notes solely into Common Stock immediately prior to such distribution at the then applicable Conversion Price; Notwithstanding the foregoing, if the distribution by the Company to all or substantially all holders of its Common Stock consists of Capital Stock of, or similar Equity Interests in, a Subsidiary or other business unit of the Company (unless such Capital Stock or similar Equity Interests are distributed to holders in such distribution as if such holders had converted their Notes into Common Stock), the Conversion Price shall be decreased so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the record date with respect to such distribution by a fraction: (i) the numerator of which shall be the average Common Stock Price over the Spinoff Valuation Period; and (ii) the denominator of which shall be the sum of (x) the average Common Stock Price over the ten (10) consecutive Trading Day period (the “Spinoff Valuation Period”) commencing on and including the fifth Trading Day after the date on which “ex-dividend trading” commences for such dividend or distribution on the Nasdaq Global Select National Market or such other national or regional exchange or market on which the Common Stock is then listed or quoted plus (y) the average fair market value (as determined by the Board of Directors and described in a resolution of the Board of Directors, which determination shall equal the average closing sale price where such closing sale price is available) over the Spinoff Valuation Period of the portion of the assets so distributed applicable to one share of ~~Class A common stock (determined~~ Common Stock, such adjustment to become effective immediately prior to the opening of business on the ~~basis~~ day following such record date; provided that the Company may in lieu of the ~~number of shares~~ foregoing adjustment make adequate provision so that each Holder shall have the right to receive upon conversion the amount of the ~~Class A common stock outstanding~~ distribution such Holder would have received had such Holder converted its Note on the record ~~date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record~~ date ~~for the determination of the holders of Class A common stock entitled~~ with respect to ~~receive~~ such distribution. ~~Notwithstanding~~ If any dividend or distribution of the ~~foregoing~~type described in this Section 8.5(3) is declared but not so paid or made, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any such adjustment ~~pursuant~~ to the ~~foregoing provisions~~ Conversion Price shall be reversed. In any case in which this paragraph is applicable, Section 8.5(1), Section 8.5(2) and the first paragraph of this ~~subsection (c~~Section 8.5(3) ~~of Section 9.6 make proper provision so~~ shall not be applicable. To the extent that the ~~holder~~ Company has a share rights plan (“Rights Plan”) in effect upon conversion of Notes, the Holders of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversionNotes will receive, in addition to the ~~shares of Class A common stock~~ cash and/or Common Stock issuable upon ~~such conversion (the "Conversion Shares")~~conversion, ~~a number of Rights to be determined~~ as ~~follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date")~~applicable, the ~~same number of~~ rights under the Rights ~~to which a holder of a number of shares of Class A common stock equal to~~ Plan, unless the ~~number of Conversion Shares is entitled~~ rights have separated from the Common Stock at the time of ~~such~~ the conversion, and, as a result, upon conversion ~~in accordance with~~ of the ~~terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date~~Notes, the ~~same number of Rights to which a holder~~ Holder of the ~~number of shares of Class A common stock into which~~ Notes would not be entitled to receive the ~~principal amount~~ rights, then in such case the Conversion Price will be adjusted as described in this Section 8.5(3). (4) In case the Company or any Subsidiary of the ~~Note so converted was convertible immediately~~ Company makes a payment in respect of a tender or exchange offer to holders of Common Stock where the cash and value of any other consideration included in the payment per share exceeds the Common Stock Price on the last Trading Day prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)Offer Expiration Time, the Conversion Price shall be ~~reduced~~ decreased so that the same shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the ~~effectiveness of the Conversion Price reduction contemplated by this subsection (d)~~ Offer Expiration Time by a ~~fraction of which~~ fraction, (i) the numerator ~~shall be the Current Market Price per share (determined as provided in subsection (f)~~ of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of ~~Class A common stock~~ Common Stock outstanding (including any tendered or exchanged shares) at the last time (the “Offer Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) multiplied by the Common Stock Price on the ~~Distribution Record Date~~Trading Day next succeeding the Offer Expiration Time, and (ii) ~~and~~ the denominator of which shall be ~~such Current Market Price per share~~ the sum of (x) the fair market value (determined as ~~provided in subsection (f) of this Section~~aforesaid) of the ~~Class A common stock~~ aggregate consideration payable to holders of Common Stock based on the ~~Distribution Record Date~~acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares of Common Stock validly tendered or exchanged and not withdrawn as of the Offer Expiration Time (the shares deemed so accepted up to any such maximum being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Offer Expiration Time and the Common Stock Price on the Trading Day next succeeding the Offer Expiration Time, such ~~reduction~~ adjustment to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~Offer Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such tender or exchange offer had not been made. (e5) In case the Company shall declare a ~~tender offer~~ cash dividend or ~~other negotiated transaction made by Company or any Subsidiary of Company for~~ cash distribution to all or ~~any portion~~ substantially all of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)Common Stock, the Conversion Price shall be ~~reduced~~ decreased so that the ~~same~~ Conversion Price shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the ~~effectiveness of the Conversion Price reduction contemplated by this subsection (e)~~ record date for such dividend or distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~Current Market Price per share (determined as provided in subsection (f) of this Section)~~ average of the ~~Class A common stock~~ Common Stock Price for the three consecutive Trading Days ending on the ~~Purchase Date less~~ Trading Day immediately preceding the ~~sum~~ record date for such dividend or distribution (the “Pre-Dividend Sale Price”), minus the amount of the ~~aggregate amount of~~ dividend or distribution to the extent payable in cash ~~and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made)~~ applicable to one share of ~~Class A common stock~~ Common Stock, and (ii) the denominator of which shall be ~~determined by dividing~~ the ~~sum of the aggregate amount of cash and the aggregate Excess Payments so distributed~~Pre-Dividend Sale Price, ~~paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which~~ such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately after the record date for such dividend or distribution; provided that if the numerator of the foregoing fraction is less than U.S.$1.00 (including a negative amount), then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the cash and Common Stock issuable upon such conversion, as applicable, the amount of cash such Holder would have received had such Holder converted its Note solely into Common Stock at the then applicable Conversion Price immediately prior to the ~~opening~~ record date for such cash dividend or cash distribution. If such cash dividend or cash distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. (6) [Reserved]. (7) In any case in which this Section 8.5 shall require that an adjustment be made immediately following a record date established for purposes of ~~business~~ this Section 8.5, the Company may elect to defer (but only until three Business Days following the filing by the Company with the Trustee of the certificate described in Section 8.9) issuing to the holder of any Note converted after such record date the cash, shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the cash, shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the ~~day following~~ basis of the ~~Purchase Date~~Conversion Price prior to adjustment; and, in lieu of the cash and shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares. (8) Before taking any action which would cause an adjustment decreasing the Conversion Price so that the shares of Common Stock issuable upon conversion of the Notes would be issued for less than the par value of such Common Stock, the Company will take all corporate action which may be necessary in order that the Company may validly and legally issue fully paid and non-assessable shares of such Common Stock at such adjusted Conversion Price.

Appears in 1 contract

Samples: First Supplemental Indenture (Franklin Bank Corp)

Appears in 1 contract

Samples: Indenture (Alamos Gold Inc)

Appears in 1 contract

Samples: Senior Indenture (Capital One Financial Corp)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a) ~~In case~~ If the Company shall (i) pay a dividend or other distribution, in ~~shares~~ Common Stock, on any class of ~~Class A common stock to holders~~ Capital Stock of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~the Company, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii)~~ subdivide ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ by any means or (iviii) combine ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of shares ~~of Class A common stock~~by any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock that such Holder would have owned ~~immediately following~~ or have been entitled to receive upon the happening of such ~~action~~ event had ~~the~~ such Note been converted immediately prior ~~thereto~~to the relevant record date or, if there is no such record date, the effective date of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection (a~~Section 1204(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such ~~distribution. Notwithstanding~~ dividend or distribution or shall become effective immediately after the ~~foregoing~~effective date of such subdivision or combination, in as the case ~~Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection~~ may be. (b) ~~above) ("Rights") to all holders of Class A common stock,~~ If the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall ~~be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows:~~ (i) ~~if such conversion occurs on~~ issue or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwisedistribute, at ~~any time make~~ a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of price per share less than the Current Market Price per share ~~(determined as provided in subsection (f)~~ of ~~this Section) of the Class A common stock~~ such Capital Stock on the ~~Distribution Record Date multiplied by~~ date of such issuance or distribution, Capital Stock (excluding an issuance or distribution of Common Stock described in Section 1204(a) above and any issuance or distribution to a holder of Senior Indebtedness issued or distributed in order to induce such holder to extend such credit to the ~~number~~ Company) or (ii) issue or distribute rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for, purchase, convert into or exchange for Capital Stock at a price per share less than the Current Market Price per share of ~~shares of Class A common stock outstanding~~ such Capital Stock on the ~~Distribution Record Date~~ date of issuance or distribution (excluding ~~shares held~~ an issuance or distribution under any stock-based employee compensation plan now existing or hereafter adopted and any issuance or distribution to a holder of Senior Indebtedness issued or distributed in order to induce such holder to extend such credit to the ~~treasury of~~ Company), then, in each such case, at the earliest of (A) the date the Company enters into a firm contract for such issuance or distribution or (B) the date of actual issuance or distribution of any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities, the Conversion Price shall be reduced ~~so that the same shall equal the price determined~~ by multiplying ~~such~~ the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the earliest date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.by:

Appears in 1 contract

Samples: Indenture (Iat Multimedia Inc)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a) In ~~case~~ the event that the Company shall (i) pay a dividend or other distribution, in shares of ~~Class A common stock to holders~~ its Common Stock, on any class of ~~Class A common stock (~~Capital Stock of the Company or any ~~event treated as such for U.S. Federal income tax purposes)~~Subsidiary which is not wholly owned by the Company, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii)~~ subdivide its outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iviii) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock of the Company that such Holder would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above had such ~~action had the~~ Note been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend ~~or distribution~~ and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In ~~case~~ the event that the Company shall issue or distribute Capital Stock or issue rights, warrants or options ~~or warrants to all holders of Class A common stock~~ entitling ~~them~~ the holder thereof to subscribe for or purchase ~~shares of Class A common stock (or securities convertible into Class A common stock)~~ Capital Stock at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share on the date of issuance or distribution (~~as determined pursuant to subsection~~ provided that the issuance of Capital Stock upon the exercise of warrants or options will not cause an adjustment in the Conversion Price if no such adjustment would have been required at the time such warrant or option was issued), then at the earliest of (fi) ~~below~~the date the Company shall enter into a firm contract for such issuance or distribution, (ii) ~~of the Class A common stock on~~ the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive any such rights, ~~options~~ warrants or ~~warrants~~options, if applicable, or (iii) the date of actual issuance or distribution of any such Capital Stock or rights, warrants or options, the Conversion Price in effect immediately prior to such earliest date shall be adjusted so that the ~~same~~ Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such ~~record~~ earliest date ~~by a~~ by: ## CT01/SCHIJ/68118.34 46 52 (x) if such Capital Stock is Common Stock, the fraction ~~of which the~~ whose numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such ~~record~~ date plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such Current Market Price (as such amount, with respect to any such rights, warrants or options, determined ~~pursuant to subsection (f) below~~by multiplying the total number of shares subject thereto by the exercise price of such rights, warrants or options and dividing the product so obtained by the Current Market Price), and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such ~~record~~ date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, Common Stock to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options issued or ~~warrants entitling the holders thereof to subscribe for~~ distributed or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive receivable upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount exercise of any ~~other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to~~ such ~~distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c)~~ warrant, right or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.option; or

Appears in 1 contract

Samples: Indenture (Lomak Petroleum Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a1) In case the Company shall (i1) pay a dividend in shares of Class A ~~common stock~~ Common Stock to holders of Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii2) make a distribution in shares of Class A ~~common stock~~ Common Stock to holders of Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~iii~~3) subdivide its outstanding shares of Class A ~~common stock~~ Common Stock into a greater number of shares of Class A ~~common stock~~ Common Stock or (iv4) combine its outstanding shares of Class A ~~common stock~~ Common Stock into a smaller number of shares of Class A ~~common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A ~~common stock~~ Common Stock which he would have owned immediately following such action had ~~the Note~~ such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a1) shall become effective immediately after the ~~record date~~ Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b2) In case the Company shall issue ~~rights, options~~ rights or warrants to substantially all holders of Class A ~~common stock~~ Common Stock entitling them (for a period commencing no earlier than the Record Date for the determination of holders of Class A Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such Record Date) to subscribe for or purchase shares of Class A ~~common stock~~ Common Stock (or securities convertible into Class A ~~common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price ~~per share~~ (as determined pursuant to subsection (f6) below) of the Class A ~~common stock~~ Common Stock on ~~the record date for determining the holders of the Class A common stock entitled to receive~~ such ~~rights, options or warrants~~Record Date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such ~~record date~~ Record Date by a fraction of which the numerator shall be the number of shares of Class A ~~common stock~~ Common Stock outstanding ~~as of the close of business~~ on such ~~record date~~ Record Date, plus the number of shares of Class A ~~common stock~~ Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of Class A ~~common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and of which the denominator shall be the number of shares of Class A ~~common stock~~ Common Stock outstanding on such ~~record date~~ Record Date plus the number of additional shares of Class A ~~common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsRecord Date. (c3) In case the Company shall distribute to all holders of Class A ~~common stock~~ Common Stock shares of capital stock of the Company (other than Class A ~~common stock)~~Common Stock, evidences of ~~indebtedness~~indebtedness or other assets (other than cash dividends), ~~cash, rights, options~~ or shall distribute to substantially all holders of Class A Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those referred to in subsection (b2) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f6) below) of the Class A ~~common stock~~ Common Stock on the ~~record date~~ Record Date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a ~~board resolution~~resolution of the Board of Directors) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of Class A ~~common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such Current Market Price of the Class A ~~common stock~~Common Stock. Such adjustment shall become effective immediately after the ~~record date~~ Record Date for the determination of the holders of Class A ~~common stock~~ Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in subsection (b2) above) ("Rights") pro rata to ~~all~~ holders of Class A ~~common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 2.3(f), make proper provision so that ~~the holder~~ each Holder of ~~the~~ a Note who converts ~~the~~ such Note (or any portion thereof) after the ~~record date~~ Record Date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A ~~common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A ~~common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A ~~common stock~~ Common Stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d4) In case the Company shall, by dividend or otherwise, at any time ~~make a distribution~~ distribute to all holders of its Class A ~~common stock exclusively in~~ Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to ~~subsection~~ paragraph (c3) of this ~~Section~~Section 2.3) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions ~~made exclusively in cash~~ to all holders of its Class A ~~common stock~~ Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to ~~subsection~~ paragraphs (c3) or (e5) of this Section 2.3 or this ~~subsection~~ paragraph (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d4) has been made, exceeds ~~12 1/2~~10% of the product of the Current Market Price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Distribution Record Date ~~multiplied by~~ times the number of shares of Class A ~~common stock~~ Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (d4) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Distribution Record Date less the ~~sum~~ amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A ~~common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Distribution Record Date) of Class A Common Stock and the denominator shall be such Current Market Price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e5) In case a tender offer ~~or other negotiated transaction~~ made by the Company or any Subsidiary ~~of Company~~ for all or any portion of the Class A ~~common stock~~ Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer ~~or other negotiated transaction~~ and the ~~aggregate~~ amount of such Excess Payment, together with the sum of (x) the aggregate amount of ~~any distributions, by dividend or otherwise,~~ all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Class A ~~common stock~~ Common Stock made in cash (specifically including ~~any~~ distributions of cash out of ~~current or~~ retained ~~earnings of Company)~~ earnings), in each case made within the 12 months preceding the ~~date of payment of such current negotiated transaction consideration or~~ expiration of such current tender offer, as the case may be (the "~~Purchase~~ Tender Date"), and as to which no adjustment ~~in the Conversion Price~~ pursuant to ~~subsection~~ paragraph (c3) or paragraph (d4) of this Section 2.3 or this ~~subsection~~ paragraph (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e5) has been made, exceeds ~~12 1/2~~10% of the product of the Current Market Price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the ~~Purchase~~ Tender Date ~~multiplied by~~ times the number of shares of Class A ~~common stock~~ Common Stock outstanding ~~on the Purchase Date~~ (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Tender Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (e5) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the ~~Purchase~~ Tender Date less the ~~sum~~ amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of ~~cash and the aggregate~~ such Excess Payments ~~so distributed~~and such cash distributions, ~~paid or payable within such 12 month period (including, without limitation,~~ divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A ~~common stock within such 12 months (including, without limitation,~~ Common Stock outstanding on the ~~Excess Payment in respect of which such adjustment is being made~~Tender Date) ~~by the number of shares~~ of Class A ~~common stock outstanding on the Purchase Date)~~ Common and the denominator shall be such Current Market Price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the ~~Purchase~~ Tender Date, such reduction to become effective immediately prior to the opening of business on the day following the ~~Purchase~~ Tender Date. (6) The current market price (the "Current Market Price") per share of Class A Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) ten (10) consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination. (7) In any case in which this Section 2.3(f) shall require that an adjustment be made immediately following a Record Date, the Company may elect to defer (but only until five (5) Business Days following the filing by the Company with the Trustee of the certificate described in Section 2.3(j) hereof) issuing to the Holder of any Note converted after such Record Date the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares. (8) Upon the occurrence of a Change of Control, in which both (a) the Company's stockholders receive consideration per share of Class A Common Stock that is greater than the Conversion Price, without giving effect to the adjustment described below, at the effective time of the Change of Control, and (b) at least 10% of the total consideration paid to the Company's stockholders consists of cash, cash equivalents, securities or other assets (other than publicly traded securities), which are referred to herein as "non-public consideration." In such circumstances, upon conversion of the Notes after the Change of Control, in addition to the Class A Common Stock or other securities deliverable upon the conversion of the Notes as described in the other provisions of this Section 2.3, including clauses (1) through (7) of this Section 2.3(f), the Holder will receive a number of publicly traded securities of the acquiror determined through the following calculation: PV cashflows X (non-public consideration/total consideration) Acquiror stock price Where: PV cashflows = the present value of the aggregate interest payments that would have been payable on the Notes from the date of conversion through May 3, 2005, calculated using a discount rate equal to the yield to maturity of U.S. Treasury securities having a maturity closest to, but not later than, May 3, 2005, Total consideration = the total value of the consideration payable to the Company's stockholders at the effective time of the Change of Control, with the value of any assets or securities other than cash or a publicly traded security being determined in good faith by the Company's Board of Directors based upon an opinion as to that value obtained from an accounting, appraisal or investment banking firm of international standing, Acquiror stock price = the price per security of the acquiror's publicly traded securities delivered in connection with the Change of Control transaction at the effective time of the Change of Control provided, however, that if the consideration received by the Company's stockholders in respect of the Change of Control consists of at least 75% non-public consideration or if the acquiror's common stock is not publicly traded, then upon conversion of the Notes after the Change of Control, in lieu of issuing additional securities of the acquiror, as set forth above, the Holder will be entitled to receive an additional amount in cash calculated as follows: PV cashflows X (non-public consideration/total consideration)

Appears in 1 contract

Samples: Second Supplemental Indenture (Adelphia Communications Corp)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i) pay a dividend in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii) make a distribution in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (iii) subdivide or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares of ~~Class A common stock~~ Common Stock or (iv) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares of ~~Class A common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he would have owned immediately following such action had ~~the Note~~ such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to substantially all holders of ~~Class A common stock~~ Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price ~~per share (as determined pursuant to subsection (f) below) of the Class A common stock~~ on ~~the~~ such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (i) the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record date plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of ~~Class A common~~ Common stock ~~so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and ~~of which~~ (ii) the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to all holders of ~~Class A common stock~~ Common Stock shares of ~~capital stock~~ any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than ~~Class A common stock~~cash dividends), ~~evidences~~ or shall distribute to substantially all holders of ~~indebtedness, cash, rights, options~~ Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those securities referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which (i) the numerator shall be the Current Market Price ~~(determined as provided in subsection (f) below) of the Class A common stock~~ on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a ~~board resolution~~Board Resolution) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and ~~of which~~ (ii) the denominator shall be such Current Market ~~Price of the Class A common stock~~Price. Such adjustment shall become effective immediately after the record date for the determination of the holders of ~~Class A common stock~~ Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants to subscribe for ~~additional shares of Company's capital stock~~ securities (other than ~~rights, options~~ the rights or warrants referred to in subsection (b) above) ("Rights") pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 5.06, make proper provision so that ~~the~~ each holder of ~~the Note~~ a Security who converts ~~the Note~~ such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of the ~~Note~~ Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case the Company shall, by dividend or otherwise, at any time ~~make a distribution~~ distribute to all holders of its ~~Class A common stock exclusively in~~ Common Stock cash (~~including any distributions of cash out of current or retained earnings of Company but~~ excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to ~~subsection~~ paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions ~~made exclusively in cash~~ to all holders of ~~Class A common stock~~ its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to ~~subsection~~ paragraphs (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection paragraph (d) has been made, exceeds ~~12 1/2~~5% of the product of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date ~~multiplied by~~ times the number of shares of ~~Class A common stock~~ Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (d) by a fraction of which (i) the numerator shall be the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date less the ~~sum~~ amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Distribution Record ~~Date~~Date of Common Stock and (ii) ~~and~~ the denominator shall be such Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date, such reduction to become ~~effective~~ Effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the ~~Class A common stock~~ Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the ~~aggregate~~ amount of such Excess Payment, together with the sum of (x) the aggregate amount of ~~any distributions, by dividend or otherwise,~~ all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the ~~Class A common stock~~ Common Stock made in ~~cash (including any distributions of cash out of current or retained earnings of Company)~~ cash, in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment ~~in the Conversion Price~~ pursuant to ~~subsection~~ paragraph (c) or paragraph (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection paragraph (e) has been made, exceeds ~~12 1/2~~5% of the product of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date ~~multiplied by~~ times the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~on the Purchase Date~~ (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (e) by a fraction of which (i) the numerator shall be the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date less the ~~sum~~ amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of ~~cash and the aggregate~~ such Excess Payments ~~so distributed~~and such cash distributions, ~~paid or payable within such 12 month period (including, without limitation,~~ divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Purchase Date) of Common Stock and (ii) the denominator shall be ~~such~~ the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date. (f) In case the Company shall issue Common Stock or securities convertible into, or exchangeable for, Common Stock at a price per share (or having a conversion or exchange price per share) that is less than the Current Market Price (but excluding, among other things, issuances: (1) pursuant to any bona fide plan for the benefit of employees, directors or consultants of the Company now or hereafter in effect; (2) to acquire all or any portion of a business in an arm's-length transaction between the Company and an unaffiliated third party including, if applicable, issuances upon exercise of options or warrants assumed in connection with such transaction; (3) in a bona fide public offering pursuant to a firm commitment underwriting or sales at the market pursuant to a continuous offering stock program; (4) pursuant to the exercise of warrants, rights (including, without limitation, earnout rights) or options, or upon the conversion of convertible securities, which are issued and outstanding on the date hereof, or which may be issued in the future for fair value and with an exercise price or conversion price at least equal to the Current Market Price at the time of such issuance), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price by a fraction of which (i) the numerator shall be (A) the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus a number determined by (B) multiplying the number of additional shares of Common Stock offered or issuable upon conversion or exchange times the offering, conversion or exchange price per share of additional shares and dividing the product thereof by the Current Market Price on the record date or issuance date, as applicable, and (ii) the denominator shall be the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus the number of additional shares of Common Stock offered or issuable upon conversion or exchange. Such adjustment shall be made whenever any such securities are issued and shall become effective on the date of such issuance. (g) The Current Market Price per share of Common Stock on any date (the "Current Market Price") shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination. (h) In any case in which this Section 5.06 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.

Appears in 1 contract

Samples: Indenture (Swift Energy Co)

Adjustment of Conversion Price. The ~~Conversion Price~~ conversion price, and consequently the number of shares of Common Stock into which a Security is convertible, shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i) pay a dividend on Common Stock or make a distribution on its Common Stock that is paid or made (1) in shares of ~~Class A common~~ any class of capital stock of the Company or (2) in rights to ~~holders~~ purchase any stock or other securities if such rights are not separable from the Common Stock except upon the occurrence of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~a contingency, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, then in each such case the ~~Conversion Price~~ conversion price in effect immediately prior ~~to such action~~ thereto shall be adjusted retroactively as provided below so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock and other shares and rights to purchase stock or other securities (or, in the event of the redemption of any such shares or rights, any cash, property or securities paid in respect of such redemption) which he such Holder would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above had such ~~action had the Note~~ Security been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection~~ Subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ its Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as ~~determined pursuant to subsection~~ provided in paragraph (fd) ~~below~~of this Section) of the ~~Class A common stock~~ Common Stock on the ~~record~~ date fixed for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive such ~~rights, options~~ rights or warrants, then the ~~Conversion Price~~ conversion price in effect at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the price determined~~ decreased by multiplying ~~the Conversion Price in effect immediately prior to~~ such ~~record date~~ conversion price by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of ~~Class A common stock~~ Common Stock so offered for subscription or purchase, and the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase ~~(or into which the convertible securities so offered are convertible). Such adjustments shall~~ would purchase at such current market price, such reduction to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination; provided, however, in the event that all the shares of Common Stock offered for subscription or purchase are not delivered upon the exercise of such rights or warrants, upon the expiration of such rights or warrants the conversion price shall be readjusted to the conversion price which would have been in effect had the numerator and the denominator of the foregoing fraction and the resulting adjustment been made based upon the number of shares of Common Stock actually delivered upon the exercise of such rights or warrants rather than upon the number of shares of Common Stock offered for subscription or purchase. For the purposes of this ~~subsection~~ paragraph (b), the number of shares of ~~Class A common stock~~ Common Stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the ~~treasury of~~ Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company ~~shall~~ shall, by dividend or otherwise, distribute to substantially all holders of ~~Class A common stock shares~~ its Common Stock evidences of ~~capital stock of Company~~ its indebtedness, cash (~~other than Class A common stock~~excluding quarterly cash dividends paid or to be paid on a regular basis), ~~evidences of indebtedness, cash, rights, options~~ other assets or rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase any securities (~~other than rights, options or warrants described~~ excluding those referred to in ~~subsection~~ paragraphs (a) and (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such ~~case~~ case, the ~~Conversion Price~~ conversion price shall be adjusted retroactively so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the ~~numerator~~ denominator shall be the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (fd) ~~below~~of this Section) of the ~~Class A common stock~~ Common Stock on the ~~record~~ date ~~mentioned below~~ fixed for such determination and the numerator shall be such current market price per share of the Common Stock less the amount of cash and the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and described in a ~~board resolution~~Board Resolution filed with the Trustee) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash~~assets, rights, ~~options,~~ warrants or ~~other assets~~ evidences of indebtedness so distributed applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~date fixed for the determination of stockholders entitled to receive such distribution. (ed) ~~In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of~~ For the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount purpose of any ~~distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash~~ computation under paragraphs (~~including any distributions of cash out of current or retained earnings of Company~~b) ~~within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"),~~ and ~~as to which no adjustment in the Conversion Price pursuant to subsection~~ (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) , the current market price per share of Common Stock on any date shall be deemed to be the average of the ~~Class A common stock on~~ daily closing prices for the ~~Purchase Date multiplied by~~ 30 consecutive trading days commencing with the ~~number of shares of Class A common stock outstanding on~~ 45th trading day before the ~~Purchase Date (including any tendered shares but excluding any shares held~~ day in ~~the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the~~ question. The closing price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator for each day shall be the ~~Current Market Price per share (determined as provided~~ last reported sales price regular way or, in ~~subsection (f) of this Section)~~ case no such reported sale takes place on such day, the average of the ~~Class A common stock~~ reported closing bid and asked prices regular way, in either case on the ~~Purchase Date less the sum~~ composite tape of the ~~aggregate amount of cash and~~ principal national securities exchange upon which the Common Stock is listed or on the Nasdaq National Market (based on the aggregate ~~Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect~~ dollar value of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.all

Appears in 1 contract

Samples: Indenture (Offshore Logistics Inc)

Adjustment of Conversion Price. The conversion price (herein called the "Conversion ~~Price~~ Price") shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of ~~Class A common stock to holders~~ Common Stock on any class of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Capital Stock of the Company, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which~~ Common Stock that he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue rights, options or warrants to all holders of ~~Class A common stock~~ Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) ~~of the Class A common stock~~ on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (i) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, of ~~which~~ which (ii) the numerator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of ~~which~~ which (iii) the denominator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of ~~Class A common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)h) below, after the ~~number~~ record date for the determination of ~~shares of Class A common stock at~~ holders entitled to receive such rights, options or warrants; provided, however, that if -------- ------- any ~~time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of~~ such ~~Class A common stock. The Company shall not issue any~~ rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the ~~Board~~ Company as described in this subsection (b) are only exercisable upon the occurrence of ~~Directors~~certain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur. (c) In case the Company or any Subsidiary of the Company shall distribute to all holders of ~~Class A common stock shares~~ Common Stock, any of ~~capital stock of Company (other than Class A common stock)~~its assets, evidences of indebtedness, ~~cash, rights, options~~ cash or ~~warrants entitling the holders thereof to subscribe for~~ other assets or ~~purchase securities (~~shares of Capital Stock other than ~~rights~~Common Stock (including securities, ~~options~~ but other than (x) dividends or ~~warrants described~~ distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market~~ then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (d) In case the Company or any Subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d). (e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 12.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the ~~Class A common stock~~ Common Stock on the ~~record date mentioned below less~~ Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such ~~record date~~ current market price per share on the Expiration Time times (as ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immedi- ately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of ~~Directors, whose determination shall be conclusive evidence~~ Directors of ~~such fair market value~~ the Company and described in a ~~board resolution~~Board Resolution. (f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the ~~portion~~ Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the ~~evidences~~ date in question and the date before the "`ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of ~~indebtedness~~Last Sale Price in Section 12.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Company, shall be used. For purposes of this paragraph, the term "`ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer. (g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of ~~capital stock~~Common Stock. In the event the Company elects to make such a reduction in the conversion price, ~~cash~~the Company will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conver- sion Price of the Notes; provided that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws. (h) In any case in which this Section 12.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, ~~rights~~the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), ~~options~~in which case the Company shall, ~~warrants~~ with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 12.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Company (or other assets ~~so distributed applicable to one share of Class A common stock (determined on the basis~~ or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the ~~Class A common stock outstanding~~ Company issuable thereupon only on the ~~record date)~~basis of the Conversion Price prior to adjustment, and ~~of which the denominator shall be~~ (ii) not later than five Business Days after such ~~Current Market Price of the Class A common stock. Such~~ adjustment shall have become ~~effective immediately after~~ effective, pay to such Holder the ~~record date for~~ appropriate Cash payment pursuant to Section 12.3 hereof and issue to such Holder the ~~determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for~~ additional shares of Common Stock and other Capital Stock of the Company issuable on such conversion. (i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this -------- subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Company~~'s capital stock~~ . (k) In the event that the Company distributes rights or warrants (other than ~~rights, options or warrants~~ those referred to in subsection (b) above) ~~("Rights")~~ pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company ~~may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6~~ shall make proper provision so that the ~~holder~~ Holder of ~~the~~ any Note ~~who converts the Note (or any portion thereof) after the record date~~ surrendered for ~~such distribution and prior to the expiration or redemption of the Rights shall~~ conversion will be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of ~~Rights~~ rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of ~~Rights~~ rights or warrants of separate certificates evidencing such ~~Rights~~ rights or warrants (the "Distribution Date"), the same number of ~~Rights~~ rights or warrants to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the ~~Rights;~~ rights or warrants, and (ii) if such conversion occurs after ~~the~~ such Distribution Date, the same number of ~~Rights~~ rights or warrants to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of ~~the~~ such Note so converted was convertible immediately prior to ~~the~~ such Distribution Date would have been entitled on ~~the~~ such Distribution Date in accordance with the terms and provisions of and applicable to the ~~Rights~~rights or warrants. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 1 contract

Samples: Indenture (United States Filter Corp)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject~~ upon Issuance of Common Stock. If, during the period commencing on the Closing Date through and including the date which is 15 months from the Closing Date, the Issuer issues or sells, or is deemed to ~~adjustment from time to time as follows: (a) In case Company shall (i) pay a dividend in~~ have issued or sold, any shares of ~~Class A common stock~~ Common Stock (other than the Debenture Shares and the Warrant Shares (each as defined in the Purchase Agreement) or shares of Common Stock deemed to ~~holders~~ have been issued by the Issuer in connection with a Stock Plan, shares of ~~Class A common stock~~ Common Stock issuable upon the exercise of any options or warrants outstanding on the date hereof or upon conversion of convertible securities outstanding on the date hereof, in each case as listed in Schedule 2.1(c) of the Purchase Agreement, shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below), or shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Issuer of a division, assets or business (or stock constituting any ~~event treated as~~ portion thereof) from another person) for a consideration per share less than $10.00, then immediately after such ~~for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (~~issue or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stocksale, the Conversion Price then in effect ~~immediately prior to such action~~ shall be ~~adjusted so that~~ reduced to an amount equal to the ~~holder~~ consideration per share of ~~this Note thereafter surrendered for conversion~~ Common Stock in such issuance or sale. A "Strategic Venture" shall ~~be entitled~~ mean a venture between the Issuer and a pharmaceutical or biotechnology company or an Affiliate thereof, the primary purpose of which is not to ~~receive~~ raise capital in the ~~number~~ form of ~~shares~~ equity (including without limitation through the issuance of ~~Class A common~~ warrants, convertible securities, phantom stock ~~which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made~~ rights, stock appreciation rights or other rights with equity features) and pursuant to ~~this~~ which the Issuer contributes to or issues securities of the Issuer valued at less than 50% of the entire contribution of the Issuer. If the Holder and the Issuer cannot agree on the value of the components of such contribution, the last two sentences of subsection (aE)(I) entitled "Calculation of Consideration" shall ~~become effective immediately after the record date in the case~~ apply. For purposes of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the ~~holders of the Class A common stock entitled to receive such rights, options or warrants, the~~ adjusted Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of under this ~~subsection (b~~Section 4.6(g), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there following shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.applicable:

Appears in 1 contract

Samples: Convertible Debenture Agreement (Geron Corporation)

Adjustment of Conversion Price. 6.1.1 The Conversion Price ~~shall~~ in effect at any date will be subject to adjustment from time to time in the events and in the manner provided as follows. 6.1.2 If and whenever at any time after the date hereof and prior to the Maturity Date, the Company: (a) ~~In case Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (~~subdivides, redivides or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide changes its outstanding ~~shares of Class A common stock~~ Common Shares into a greater number of ~~shares of Class A common stock~~ Common Shares; or (b) reduces, combines or ~~(iv) combine~~ consolidates its outstanding ~~shares of Class A common stock~~ Common Shares into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.Common Shares; (bc) ~~In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (~~issues Common Shares or securities convertible into ~~Class A common stock) at a price per share (~~or ~~having a conversion price per share) less than the Current Market Price per share (as determined pursuant~~ exchangeable for Common Shares to ~~subsection (f) below) of the Class A common stock on the record date for determining~~ the holders of all or substantially all of the ~~Class A common~~ outstanding Common Shares as a stock ~~entitled~~ dividend or otherwise (other than an issue of Common Shares or securities convertible into or exchangeable for Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such ~~rights~~Common Shares in lieu of Dividends Paid in the Ordinary Course); (d) makes a distribution on its outstanding Common Shares to the holders of all or substantially all of the outstanding Common Shares payable in Common Shares or securities convertible into or exchangeable for Common Shares (other than an issue of Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course); (any of such events in subsections (a), ~~options or warrants~~(b), (c) and (d), and being called a “Common Share Reorganization”) then the Conversion Price ~~shall~~ then in effect will be adjusted effective on the effective date of a Common Share Reorganization, so that the ~~same~~ Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such ~~record~~ effective date by a ~~fraction~~ fraction, the numerator of which ~~the numerator shall~~ will be ~~the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of~~ the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Shares outstanding on such ~~record~~ effective date ~~plus~~ before giving effect to such Common Share Reorganization and the denominator of which will be the total number of ~~additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective~~ Common Shares outstanding immediately after giving effect to such ~~record date. For~~ Common Share Reorganization (including, in the ~~purposes of this subsection (b)~~case where securities exchangeable for or convertible into Common Shares are distributed, the number of ~~shares of Class A common stock~~ Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date). 6.1.3 If and whenever at any time ~~outstanding shall not include shares held in~~ after the ~~treasury~~ date hereof and prior to the Maturity Date, the Company fixes a record date for the issue of ~~Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any~~ rights, options or warrants ~~in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle~~ to the holders of all or substantially all of the outstanding Common Shares under which such holders are entitled to subscribe for or purchase ~~shares~~ during a period expiring not more than 45 days after the record date for such issue (the “Rights Period”) Common Shares or securities exchangeable for or convertible into Common Shares at a price per share in United States Dollars to the holder (or at an exchange price or conversion price per share in the case of ~~Class A common stock at~~ securities exchangeable for or convertible into Common Shares) which is less than 95% of the Current Market ~~Price, and in determining~~ Price for the ~~aggregate offering price~~ Common Shares on such record date (any of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11events being called a “Rights Offering”), then ~~in each such case~~ the Conversion Price ~~shall~~ will be adjusted effective immediately after the end of the Rights Period so that ~~the same~~ it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the ~~date~~ end of ~~such distribution~~ the Rights Period by a ~~fraction~~ fraction: (a) the numerator of which ~~the numerator shall~~ will be the ~~Current Market Price~~ aggregate of: (~~determined~~ i) the total number of Common Shares outstanding as ~~provided in subsection (f) below)~~ of ~~the Class A common stock on~~ the record date ~~mentioned below less~~ for the ~~fair market value on such record date~~ Rights Offering, and (as ii) a number determined by dividing (A) either (x) the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis product of the number of ~~shares~~ Common Shares issued or subscribed for upon the exercise of the ~~Class A common stock outstanding on~~ rights, warrants or options under the ~~record date)~~Rights Offering and the price in United States Dollars at which such Common Shares are offered for such issue or subscription, or, as the case may be, (y) the product of the exchange price or conversion price of such securities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the ~~denominator shall be such~~ securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (B) the Current Market Price of the ~~Class A common stock~~Common Shares as of the record date for the Rights Offering, and (b) the denominator of which will be the number of Common Shares outstanding after giving effect to the Rights Offering, including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. ~~Such adjustment shall become effective~~ Any Debentureholder who has exercised the right to convert to Common Shares in accordance with Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption last day of the Rights ~~shall be entitled to receive upon such conversion~~Period for the Rights Offering will, in addition to the ~~shares of Class A common stock issuable~~ Common Shares to which that holder would otherwise be entitled upon such ~~conversion (the "Conversion Shares")~~conversion, a be entitled to that number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock additional Common Shares equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of result obtained when (x) the ~~aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within~~ difference, if any, between the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the ~~effectiveness~~ end of the Rights Period for such Rights Offering and the Conversion Price ~~reduction contemplated by~~ as adjusted for such Rights Offering pursuant to this subsection ~~(d)~~ is multiplied by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the ~~aggregate amount~~ number of Common Shares received upon the conversion of the Debentures held by such Holder during such period, and the resulting product is divided by (z) the Conversion Price as adjusted for such Rights Offering pursuant to this subsection; provided that the provisions of section 4.3 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this subsection. Such additional Common Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised on or before the expiry thereof, the Conversion Price will be readjusted to the Conversion Price which would then be in effect based on the number of Common Shares (or the securities convertible into or exchangeable for Common Shares) actually delivered on the exercise of such rights, options or warrants. 6.1.4 If and whenever at any time after the date hereof and prior to the Maturity Date, the Company fixes a record date for the issue or the distribution to the holders of all ~~Excess Payments in respect~~ or substantially all of ~~any other tender offers~~ the outstanding Common Shares of (i) securities of the Company, including rights, options or ~~other negotiated transactions by~~ warrants to acquire securities of the Company or any of its ~~Subsidiaries for Class A common stock concluded within~~ property or assets and including cash and evidences of indebtedness; or (ii) any property or other assets, including cash and evidences of indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the ~~12 months preceding the Purchase Date and in respect~~ Ordinary Course, a Common Share Reorganization, a Rights Offering (any of ~~which no adjustment in~~ such non-excluded events being called a “Special Distribution”), then the Conversion Price ~~pursuant to subsection (c)~~ will be adjusted effective immediately after the date of such issuance or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced distribution so that ~~the same~~ it shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect ~~immediately prior to~~ on such issuance or distribution date by a fraction: (a) the ~~effectiveness~~ numerator of which will be: (i) the product of the ~~Conversion Price reduction contemplated by this subsection (e) by a fraction~~ number of ~~which~~ Common Shares outstanding on the ~~numerator shall be~~ date of such issuance or distribution and the Current Market Price ~~per share~~ of the Common Shares on the date of such issuance or distribution; less (ii) the fair market value, as determined by action by the Board of Directors (whose determination, subject to the consent of a Recognized Stock Exchange, will be conclusive), to the holders of Common Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and (b) the denominator of which will be the product of the number of Common Shares outstanding on the date of such issuance or distribution and the Current Market Price of the Common Shares on such date. 6.1.5 If and whenever at any time after the date hereof and prior to the Maturity Date, there is a reclassification of the Common Shares at any time outstanding or change of the Common Shares into other shares or into other securities or other capital reorganization (other than a Common Share Reorganization), or a consolidation, amalgamation or merger of, or an arrangement involving, the Company with or into any other corporation or other entity (other than a vertical short-form amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to Applicable Law), or a transfer of the undertaking or assets of the Company as ~~provided~~ an entirety or substantially as an entirety to another corporation or other entity in ~~subsection~~ which the holders of Common Shares are entitled to receive shares, other securities or other property (f) any of ~~this Section~~such events being called a “Capital Reorganization”), any Holder of Debentures who exercises the right to convert Debentures into Common Shares after the effective date of such Capital Reorganization will be entitled to receive, and will accept for the same aggregate consideration in lieu of the number of Common Shares to which such Holder was previously entitled upon such conversion, the aggregate number of shares, other securities or other property which such holder would have been entitled to receive as a result of such Capital Reorganization if, on the effective date thereof, the holder had been the registered holder of the number of Common Shares to which such holder was previously entitled upon conversion provided, however, that the consideration into which the Debentures will be convertible will be limited to the Common Shares or other prescribed securities (as defined by section 6208 of the regulations to the Income Tax Act (Canada)) of the ~~Class A common stock on~~ Company as specified by the ~~Purchase Date less the sum~~ Board of Directors of the ~~aggregate amount~~ Company. The Company will take all steps necessary to ensure that, on a Capital Reorganization, the Holders of ~~cash and~~ Debentures will receive the aggregate ~~Excess Payments so distributed~~number of shares, ~~paid~~ other securities or ~~payable within such 12 month period (including, without limitation, the Excess Payment in respect of~~ other property to which ~~such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum~~ they are entitled as a result of the ~~aggregate amount~~ Capital Reorganization and that such shares or securities will be prescribed securities as defined in section 6208 of ~~cash and~~ the ~~aggregate Excess Payments so distributed~~regulations to the Income Tax Act (Canada), ~~paid~~ which includes shares or ~~payable~~ securities not redeemable by the holder thereof within 5 years from the issue date of the Debentures. Appropriate adjustments will be made in the application of the provisions set forth in this Article 6 as a result of any such Capital Reorganization with respect to ~~outstanding shares~~ the rights and interests thereafter of ~~Class A common stock within such 12 months (including~~Holders of Debentures to the end that the provisions set forth in this Article 6 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, ~~without limitation~~other securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the ~~Excess Payment~~ Company will enter into an indenture supplemental hereto, or other appropriate document, approved by action of the Board of Directors and by the Indenture Trustee, which will set forth an appropriate adjustment to give effect to this subsection, in ~~respect of~~ which event such adjustment will for all purposes be conclusively deemed to be an appropriate adjustment, subject to the prior written consent of the Recognized Stock Exchanges, if so required. 6.1.6 If the purchase price provided for in any rights, options or warrants (the “Rights Offering Price”) referred to in subsections 6.1.3 or 6.1.4 is ~~being made) by~~ decreased, the ~~number of shares of Class A common stock outstanding~~ Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under subsection 6.1.3 or 6.1.4, as the case may be, with respect to such rights, options or warrants had been made on the ~~Purchase Date) and~~ basis of the ~~denominator shall be such Current Market~~ Rights Offering Price ~~per share (determined~~ as so decreased, provided ~~in subsection (f)~~ that the terms of this ~~Section)~~ subsection will not apply to any decrease in the Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the extent that the resulting decrease in the Conversion Price under this subsection would be greater than the decrease, if any, in the Conversion Price to be made under the terms of this section by virtue of the ~~Class A common stock on~~ occurrence of the ~~Purchase Date,~~ event giving rise to such ~~reduction to become effective immediately prior to~~ decrease in the ~~opening of business on the day following the Purchase Date~~Rights Offering Price.

Appears in 1 contract

Samples: Indenture (Golden Star Resources LTD)

Adjustment of Conversion Price. The Conversion Price for each series shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company ~~shall~~ shall, while any of the Convertible Securities are outstanding, (i) pay a dividend or make a distribution with respect to its Common Stock in shares of ~~Class A common stock to holders of Class A common~~ its capital stock (whether shares of Common Stock or of capital stock of any ~~event treated as such for U.S. Federal income tax purposes~~other class), (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock into a greater number of shares of Class A common stock or~~ Common Stock, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its shares of ~~Class A common stock~~Common Stock any shares of capital stock of the Company, the conversion privilege and the Conversion Price for each series of Convertible Securities in effect immediately prior to such action shall be adjusted so that the holder of ~~this Note~~ any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ capital stock of the Company which he would have owned immediately following such action had ~~the Note~~ such Convertible Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend ~~or distribution~~ and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Convertible Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a resolution filed with the Trustee) shall determine the allocation of the adjusted Conversion Price for each series of Convertible Securities between or among shares of such classes of capital stock. (b) In case the Company ~~shall~~ shall, while any of the Convertible Securities are outstanding, issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ its Common Stock entitling them (for a period expiring within forty-five days after the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fd) below) ~~of the Class A common stock~~ on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price for each series of Convertible Securities of the Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price for such series in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants~~, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case the Company ~~shall~~ shall, while any of the Convertible Securities are outstanding, distribute to all holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its Common Stock evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or assets (excluding any cash dividends) or rights to subscribe or warrants ~~entitling the holders thereof~~ (excluding those referred to ~~subscribe for or purchase securities (other than rights, options or warrants described~~ in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price for each series of Convertible Securities of the Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price for such series in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fd) below) of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of ~~Directors~~Directors of the Company, whose determination shall be ~~conclusive evidence of such fair market value~~ conclusive, and described in a ~~board resolution~~resolution filed with the Trustee) of the portion of the assets or evidences of ~~indebtedness, shares of capital stock, cash, rights, options, warrants or other assets~~ indebtedness so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and ~~of which~~ the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) ~~In case Company shall, by dividend or otherwise, at~~ For the purpose of any ~~time make a distribution to all holders of its Class A common stock exclusively in cash~~ computation under Subdivisions (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection b) and (c) above, the current market price per share of ~~this Section) in an aggregate amount that, together with~~ Common Stock at any date shall be deemed to be the ~~sum~~ average of ~~(x)~~ the ~~aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within~~ daily closing prices for the ~~12 months preceding~~ thirty consecutive trading days commencing forty-five trading days before the date ~~fixed~~ in question. The closing price for ~~determining~~ each day shall be (i) if the ~~stockholders entitled~~ Common Stock is listed or admitted to ~~such distribution~~ trading on a national securities exchange, the closing price on the NYSE-Consolidated Tape (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any ~~of its Subsidiaries for Class A common stock concluded within~~ successor composite tape reporting transactions on national securities exchanges) or, if such a composite tape shall not be in use or shall not report transactions in the ~~12 months preceding~~ Common Stock, the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock last reported sales price regular way on the ~~Distribution Record Date multiplied by~~ principal national securities exchange on which the Common Stock is listed or admitted to trading (which shall be the national securities exchange on which the greatest number of shares of ~~Class A common stock outstanding on~~ the ~~Distribution Record Date (excluding shares held in the treasury of Company~~Common Stock has been traded during such 30 consecutive trading days), or, if there is no transaction on any such day in any such situation, the ~~Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness~~ mean of the ~~Conversion Price reduction contemplated by this subsection~~ bid and asked prices on such day or (~~d) by a fraction of which~~ ii), if the ~~numerator shall be~~ Common Stock is not listed or admitted to trading on any such exchange, the ~~Current Market Price per share (determined as provided in subsection (f) of this Section)~~ last reported sale price, if reported, or, if no sale occurs on such date or the last reported sale price is not available, the average of the ~~Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash~~ closing bid and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) asked prices as reported by the ~~number~~ National Association of ~~shares of Class A common stock outstanding on~~ Securities Dealers Automated Quotation System (NASDAQ) or a similar source selected from time to time by the ~~Distribution Record Date) and~~ Company for the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datepurpose. (e) In any case in which this Section 3.05 shall require that an adjustment be made immediately following a ~~tender offer~~ record date, the Company may elect to defer (but only until five business days following the filing by the Company with the Trustee of the Officer's Certificate described in subsection (g) below) issuing to the holder of any Convertible Security converted after such record date the shares of Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the basis of the Conversion Price for the series of Convertible Securities which such Convertible Security is a part prior to such adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other ~~negotiated transaction made by Company or any Subsidiary of Company for all or any portion~~ appropriate evidence of the ~~Class A common stock~~ right to receive such shares. (f) No adjustment in the Conversion Price for any series of Convertible Securities shall be ~~consummated~~required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, ~~if an Excess Payment is~~ however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in ~~respect~~ any subsequent adjustment. All calculations under this Section 3.05 shall be made to the nearest cent or to the nearest one-hundredth of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offera share, as the case may be. (g) Whenever the Conversion Price for any series of Convertible Securities is adjusted as herein provided, the Company shall promptly file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price for such series after such adjustment and setting forth a brief statement of the facts and calculation requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment and cause a notice stating that such adjustment has been effected and the adjusted Conversion Price to be mailed to the holders of Convertible Securities of such series at their last addresses as they shall appear on the Securities register. (~~the "Purchase Date"), and as to which no adjustment~~ h) The Company may make such reductions in the Conversion ~~Price~~ Price, in addition to those required by this Section 3.05, as it considers to be advisable in order to avoid or diminish any income tax to any holder of its Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. (i) In the event that at any time as a result of an adjustment made pursuant to subsection (ca) ~~or (d) of this Section or this subsection (e) has been made plus (y)~~ above, the ~~aggregate amount of all Excess Payments in respect~~ holder of any Convertible Security thereafter surrendered for conversion shall become entitled to receive any shares of capital stock of the Company other ~~tender offers or other negotiated transactions by Company or any~~ than shares of its ~~Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in~~ Common Stock, thereafter the Conversion Price ~~pursuant to subsection (c) or (d)~~ for such series of ~~this Section or this subsection (e) has been made, exceeds 12 1/2%~~ such other shares so receivable upon conversion of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any ~~tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ Convertible Securities shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price~~ subject to adjustment from time to time in ~~effect immediately prior~~ a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable provisions with respect to ~~outstanding shares of Class A common stock within such 12 months~~ Common Stock contained in subsections (~~including~~a) through (h) above, ~~without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date)~~ and the ~~denominator shall be such Current Market Price per share (determined as provided in subsection (f)~~ provisions of ~~this Section)~~ Sections 3.01 through 3.04 and of ~~the Class A common stock on the Purchase Date, such reduction to become effective immediately prior~~ Sections 3.06 through 3.10 with respect to the ~~opening of business~~ Common Stock shall apply on ~~the day following the Purchase Date~~like terms to any such other shares.

Appears in 1 contract

Samples: Indenture (Masco Corp /De/)

Adjustment of Conversion Price. The Conversion Price in effect at any time shall be subject to adjustment ~~from time to time~~ as follows: (a) In case ~~Company~~ the Issuer shall (i) pay a dividend in or make a distribution of shares of ~~Class A common stock to holders of Class A common~~ its capital stock (whether shares of Common Stock or of capital stock of any ~~event treated as such for U.S. Federal income tax purposes~~other class), (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock into a greater number of shares of Class A common stock or~~ Common Stock, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares or (iv) issue by reclassification of ~~Class A common stock~~its shares of Common Stock any shares of capital stock of the Issuer, the ~~Conversion Price~~ conversion price in effect immediately prior to such action shall be adjusted by the Issuer so that the holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ capital stock of the Issuer which he would have owned or been entitled to receive immediately following such action had ~~the Note~~ such Security been ~~converted~~ exchanged immediately prior thereto. ~~Any~~ An adjustment made pursuant to this ~~subsection~~ paragraph (a) shall become effective retroactively immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this paragraph (a), the holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock of the Issuer, the Board of Directors (whose determination shall be conclusive) shall determine the allocation of the adjusted exchange price between or among shares of such classes of capital stock. (b) In case ~~Company~~ the Issuer shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ its Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ then current market price per share (as determined pursuant to ~~subsection~~ paragraph (fd) below) ~~of the Class A common stock~~ on the record date ~~for determining~~ mentioned below, the ~~holders~~ conversion price of the ~~Class A common stock entitled to receive such rights, options or warrants, the Conversion Price~~ Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the total number of shares of ~~Class A common stock~~ Common Stock so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below),~~ current market price and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants~~, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case ~~Company~~ the Issuer shall distribute to all holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its Common Stock evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or assets (excluding any cash dividend paid from retained earnings of the Issuer) or rights or warrants ~~entitling the holders thereof~~ to subscribe ~~for or purchase~~ to securities of the Issuer (~~other than rights, options or warrants described~~ excluding those referred to in ~~subsection~~ Paragraph (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the ~~Conversion Price~~ conversion price shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (fd) below) of ~~the Class A common stock on the record date mentioned below~~ Common Stock less the then fair market value ~~on such record date~~ (as determined by the Board of ~~Directors~~Directors of the Issuer, whose determination shall be ~~conclusive evidence of such fair market value and described in a board resolution~~conclusive) of the portion of the assets or evidences of ~~indebtedness, shares of capital stock, cash, rights, options, warrants or other assets~~ indebtedness so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock on the record date mentioned below. Such adjustment shall become effective retroactively immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. (d) For the purpose of any computation under paragraphs (b) and (c) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices for 10 consecutive Business Days commencing 10 Business Days before the day in question. ~~Notwithstanding~~ The closing price for each day shall be the ~~foregoing~~last reported sales price regular way on the New York Stock Exchange ("NYSE"), or, if not reported for the NYSE, on the Composite Tape, or, in case ~~Company~~ no such reported sale takes place on such day, the average of the reported closing bid and asked quotations on the NYSE, or, if the Common Stock is not listed on the NYSE or no such quotations are available, the average of the high bid and low asked quotations in the over-the-counter market as reported by the National Quotation Bureau, Incorporated, or similar organization, or, if no such quotations are available, the fair market price as determined by the Issuer (whose determination shall ~~distribute rights~~be conclusive). (e) In any case in which this Section 13.4 shall require that an adjustment be made retroactively immediately following a record date, ~~options or warrants~~ the Issuer may elect to ~~subscribe for additional shares~~ defer (but only until five Business Days following the mailing by the Issuer of ~~Company~~the Officer's ~~capital stock~~ Certificate described in paragraph (~~other than rights, options or warrants referred~~ j) below) issuing to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of ~~the Note who converts the Note (or~~ any ~~portion thereof)~~ share converted after ~~the~~ such record date ~~for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to~~ (i) the shares of ~~Class A common~~ Common Stock and other capital stock of the Issuer issuable upon such conversion over and above (ii) the ~~"Conversion Shares"), a number~~ shares of ~~Rights~~ Common Stock and other capital stock of the Issuer issuable upon such conversion only on the basis of the conversion price prior to ~~be determined as follows:~~ adjustment. (f) In the case of either (i) ~~if such conversion occurs on~~ any consolidation or ~~prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights~~ merger to which the Issuer is a party, other than a consolidation or a merger in which the Issuer is a continuing corporation and which does not result in any reclassification of, or change (other than a change in par value or from par value to no par value or from no par value to par value, or as a result of a subdivision or combination) in, outstanding shares of the Common Stock, or (ii) any sale or conveyance to another corporation of the property of the Issuer as an entirety or substantially as an entirety, then the holder of ~~a number~~ each Outstanding Security shall have the right to exchange such Security into the kind and amount of shares of ~~Class A common~~ stock ~~equal to the number of Conversion Shares is entitled at the time of~~ and other securities and property (including cash) receivable upon such ~~conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date~~consolidation, ~~the same number of Rights to which~~ merger, sale or conveyance by a holder of the number of shares of ~~Class A common stock~~ Common Stock issuable upon conversion of such Security immediately prior to such consolidation, merger, sale or conveyance, subject to adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 13.4 assuming, in the case of any consolidation, merger, sale or conveyance, such holder of Common Stock of the Issuer (i) is not a Person with or into which the ~~principal amount of~~ Issuer consolidated or merged or which merged into the ~~Note so converted was convertible immediately prior~~ Issuer or to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such ~~adjustment is being~~ sale or conveyance was made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (~~the~~ "~~Purchase Date~~constituent Person"), or an Affiliate of a constituent Person and (ii) failed to exercise his rights of election, if any, as to ~~which no adjustment in~~ the ~~Conversion Price pursuant to subsection (c)~~ kind or ~~(d) of this Section or this subsection (e) has been made plus (y) the aggregate~~ amount of ~~all Excess Payments in respect~~ shares of ~~any~~ stock and other ~~tender offers~~ securities and property (including cash) receivable upon such consolidation, merger, sale or conveyance (provided that if the kind or amount of shares of stock and other ~~negotiated transactions~~ securities and property (including cash) receivable upon such consolidation, merger, sale or conveyance is not the same for each share of Common Stock of the Issuer held immediately prior to such consolidation, merger, sale or conveyance by ~~Company~~ others than a constituent Person or ~~any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date~~ an Affiliate thereof and in respect of which no such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 13.4 the kind and amount of shares of stock and other securities and property (including cash) receivable upon such consolidation, merger, sale or conveyance by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The provisions of this paragraph (f) shall similarly apply to successive consolidations, mergers, sales or conveyances. (g) No adjustment in the ~~Conversion Price pursuant~~ conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (g) are not required to ~~subsection (c) or (d)~~ be made shall be carried forward and taken into account in any subsequent adjustment; and, provided further that adjustment shall be required and made in accordance with the provisions of this Section or 13.4 (other than this ~~subsection~~ paragraph (eg)) ~~has been made, exceeds 12 1/2%~~ not later than such time as may be required in order to preserve the tax-free nature of a distribution to the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number~~ holders of shares of ~~Class A common~~ Common Stock. All calculations under this Section 13.4 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Anything in this Section 13.4 to the contrary notwithstanding, the Issuer shall be permitted to make such reductions in the conversion price in addition to those required by this Section 13.4 as it in its discretion shall consider to be advisable in order that any stock ~~outstanding on~~ dividends, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the ~~Purchase Date~~ Issuer to its stockholders shall not be taxable to the holders of the Common Stock. (~~including~~ h) In the event that at any ~~tendered shares but excluding~~ time as a result of an adjustment made pursuant to paragraph (a) above, the holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares ~~held in~~ of the ~~treasury~~ Issuer other than shares of ~~Company)~~its Common Stock, thereafter the ~~Conversion Price~~ conversion price of such other shares so receivable upon conversion of any Security shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price~~ subject to adjustment from time to time in ~~effect immediately prior~~ a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable provisions with respect to ~~outstanding~~ Common Stock contained in paragraphs (a) through (g) above, and the provisions of Sections 13.1 through 13.3 and Sections 13.5 through 13.9 with respect to the Common Stock shall apply on like or similar terms to any such other shares. (i) Before taking any action which would cause an adjustment reducing the then equivalent conversion price to be below the then par value of the Common Stock, the Issuer will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Issuer may validly and legally issue fully paid and non-assessable shares of ~~Class A common stock within such 12 months (including, without limitation,~~ Common Stock at the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined conversion price as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateso adjusted.

Appears in 1 contract

Samples: Indenture (Chubb Capital Trust Iii)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i) pay a dividend in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii) make a distribution in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (iii) subdivide or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares of ~~Class A common stock~~ Common Stock or (iv) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares of ~~Class A common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he would have owned immediately following such action had ~~the Note~~ such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to substantially all holders of ~~Class A common stock~~ Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price ~~per share (as determined pursuant to subsection (f) below) of the Class A common stock~~ on ~~the~~ such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (i) the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record date plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of ~~Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and ~~of which~~ (ii) the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to substantially all holders of ~~Class A common stock~~ Common Stock shares of ~~capital stock~~ any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than ~~Class A common stock~~cash dividends), ~~evidences~~ or shall distribute to substantially all holders of ~~indebtedness, cash, rights, options~~ Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those securities referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which (i) the numerator shall be the Current Market Price ~~(determined as provided in subsection (f) below) of the Class A common stock~~ on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a ~~board resolution~~Board Resolution) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and ~~of which~~ (ii) the denominator shall be such Current Market ~~Price of the Class A common stock~~Price. Such adjustment shall become effective immediately after the record date for the determination of the holders of ~~Class A common stock~~ Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants to subscribe for ~~additional shares of Company's capital stock~~ securities (other than ~~rights, options~~ the rights or warrants referred to in subsection (b) above) ("Rights") pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 5.6, make proper provision so that ~~the~~ each holder of ~~the~~ a Note who converts ~~the~~ such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case the Company shall, by dividend or otherwise, at any time ~~make a distribution~~ distribute to substantially all holders of its ~~Class A common stock exclusively in~~ Common Stock cash (~~including any distributions of cash out of current or retained earnings of Company but~~ excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to ~~subsection~~ paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions ~~made exclusively in cash~~ to all holders of ~~Class A common stock~~ its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to ~~subsection~~ paragraphs (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection paragraph (d) has been made, exceeds ~~12 1/2~~5% of the product of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date ~~multiplied by~~ times the number of shares of ~~Class A common stock~~ Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (d) by a fraction of which (i) the numerator shall be the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date less the ~~sum~~ amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and ~~the aggregate~~ other consideration (including any Excess Payments ~~so distributed, paid or payable within such 12-month period (including, without limitation,~~ divided by the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Distribution Record Date) of Common Stock and (ii) the denominator shall be such Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date, ) such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the ~~Class A common stock~~ Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the ~~aggregate~~ amount of such Excess Payment, together with the sum of (x) the aggregate amount of ~~any distributions, by dividend or otherwise,~~ all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the ~~Class A common stock~~ Common Stock made in ~~cash (including any distributions of cash out of current or retained earnings of Company)~~ cash, in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment ~~in the Conversion Price~~ pursuant to ~~subsection~~ paragraph (c) or paragraph (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection paragraph (e) has been made, exceeds ~~12 1/2~~5% of the product of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date ~~multiplied by~~ times the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~on the Purchase Date~~ (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (e) by a fraction of which (i) the numerator shall be the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date less the ~~sum~~ amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of ~~cash and the aggregate~~ such Excess Payments ~~so distributed~~and such cash distributions, ~~paid or payable within such 12 month period (including, without limitation,~~ divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Purchase Date) of Common Stock and (ii) the denominator shall be ~~such~~ the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date. (f) In case the Company shall issue Common Stock or securities convertible into, or exchangeable for, Common Stock at a price per share (or having a conversion or exchange price per share) that is less than the Current Market Price (but excluding, among other things, issuances: (1) pursuant to any bona fide plan for the benefit of employees, directors or consultants of the Company now or hereafter in effect; (2) to acquire all or any portion of a business in an arm's-length transaction between the Company and an unaffiliated third party including, if applicable, issuances upon exercise of options or warrants assumed in connection with such transaction; (3) in a bona fide public offering pursuant to a firm commitment underwriting or sales at the market pursuant to a continuous offering stock program; (4) pursuant to the exercise of warrants, rights (including, without limitation, earnout rights) or options, or upon the conversion of convertible securities, which are issued and outstanding on the date hereof, or which may be issued in the future for fair value and with an exercise price or conversion price at least equal to the Current Market Price at the time of such issuance), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price by a fraction of which (i) the numerator shall be (A) the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus a number determined by (B) multiplying the number of additional shares of Common Stock offered or issuable upon conversion or exchange times the offering, conversion or exchange price per share of additional shares and dividing the product thereof by the Current Market Price on the record date or issuance date, as applicable, and (ii) the denominator shall be the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus the number of additional shares of Common Stock offered or issuable upon conversion or exchange. Such adjustment shall be made whenever any such securities are issued and shall become effective on the date of such issuance. (g) The Current Market Price per share of Common Stock on any date (the "Current Market Price") shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination. (h) In any case in which this Section 6.6 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Note converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.

Appears in 1 contract

Samples: Supplemental Indenture (Mail Well Inc)

Adjustment of Conversion Price. The ~~Conversion Price~~ conversion price shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company shall hereafter (i) pay a dividend or make a distribution on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~capital stock of the Company, the ~~Conversion Price~~ conversion price in effect immediately prior to such action shall be adjusted so that the holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock of the Company which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection ~~(a)~~ shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a) the holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with any Conversion Agent) shall determine in good faith the allocation of the adjusted conversion price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock. (b) In case the Company shall hereafter issue ~~rights, options~~ rights or warrants to ~~all~~ holders of ~~Class A common stock~~ its outstanding shares of Common Stock generally entitling them to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fe) ~~below~~of this Section 5.04) of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the ~~Conversion Price~~ conversion price shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record date plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the total number of shares of ~~Class A common stock~~ Common Stock so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall be made successively whenever any such rights or warrants are distributed, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such ~~record date~~rights or warrants. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted conversion price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (~~b),~~ or the number of shares of ~~Class A common stock at any time outstanding shall not include shares held in the treasury~~ Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued). (c) In case the Company shall hereafter distribute to ~~all~~ holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its outstanding Common Stock generally evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or assets (excluding cash dividends or distributions) or rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities of the Company (~~other than rights, options or warrants described~~ excluding those referred to in subsection (b) ~~above) or other assets (including securities~~ of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by this Section ~~9.11~~5.04), then in each such case the ~~Conversion Price~~ conversion price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the ~~Conversion Price~~ conversion price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fe) ~~below~~of this Section 5.04) of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and shall be described in a ~~board resolution~~statement filed with the Trustee and with any Conversion Agent) of the portion of ~~the~~ such evidences of ~~indebtedness, shares of capital stock,~~ indebtedness or assets (but not cash~~, rights, options, warrants or other assets~~ ) so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of ~~the Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. ~~Notwithstanding the foregoing,~~ In any case in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of which this subsection (c) ~~of Section 9.6 make proper provision so that the holder of the Note who converts the Note~~ is applicable, subsection (~~or any portion thereof~~b) ~~after the record date for such distribution and prior to the expiration or redemption of the Rights~~ shall not be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsapplicable. (d) In case the Company shall, by dividend or otherwise, at any time ~~make a distribution~~ distribute to all holders of its ~~Class A common stock exclusively in~~ Common Stock cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the ~~sum of (x) the~~ aggregate amount of any other cash distributions ~~made exclusively in cash~~ to all holders of ~~Class A common stock~~ its Common Stock within the 12 months preceding the date ~~fixed for determining the stockholders entitled to~~ of payment of such distribution ~~(the "Distribution Record Date")~~ and in respect of which no ~~Conversion Price~~ conversion price adjustment pursuant to ~~subsection (c) or (e) of this Section or~~ this subsection (d) has been made ~~plus (y) the aggregate~~ previously exceeds an amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant equal to ~~subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2~~15% of the ~~product of~~ amount determined by multiplying the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fe) of this ~~Section~~Section 5.04) of the ~~Class A common stock~~ Common Stock on the ~~Distribution Record Date multiplied~~ date fixed for stockholders entitled to receive such distribution by the number of shares of ~~Class A common stock~~ Common Stock outstanding on ~~the Distribution Record Date~~ such date (excluding shares held in the ~~treasury~~ Treasury of the Company), the ~~Conversion Price~~ conversion price shall be reduced so that the same shall equal the price determined by multiplying ~~such Conversion Price~~ the conversion price in effect immediately prior to the effectiveness of the ~~Conversion Price~~ conversion price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fe) of this ~~Section~~Section 5.04) of the ~~Class A common stock~~ Common Stock on the ~~Distribution Record Date~~ date of such effectiveness less the ~~sum of the aggregate~~ amount of cash ~~and the aggregate Excess Payments~~ so ~~distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made)~~ distributed applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) Common Stock and the denominator shall be such ~~Current Market Price~~ current market price per share of the Common Stock (determined as ~~provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date~~aforesaid), such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~date fixed for the payment of such distribution. (e) ~~In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of~~ For the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount purpose of any ~~distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash~~ computation under subsections (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"b), ~~and as to which no adjustment in the Conversion Price pursuant to subsection~~ (c) or and (d) of this Section 5.04 or under Section 5.03, the "current market price" per share of Common Stock on any record date shall be deemed to be the average of the daily closing prices for the five consecutive trading days immediately preceding the date in question. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if the shares of Common Stock are not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the shares are listed or admitted to trading, or if they are not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotation ("NASDAQ") national market system or any comparable system, or if the Common Stock is not listed on the NASDAQ system or a comparable system, the closing bid and asked prices as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. (f) In any case in which this Section 5.04 shall require that an adjustment be made immediately following a record date, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee and any Conversion Agent of the certificate of Independent Public Accountants described in Section 5.05) issuing to the holder of any Security converted after such record date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the conversion price prior to adjustment. (g) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (eg) ~~has been~~ are not required to be made ~~plus (y)~~ shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 5.04 shall be made to the ~~aggregate amount~~ nearest cent or the nearest 1/100th of ~~all Excess Payments~~ a share, as the case may be. Anything in ~~respect of any other tender offers or other negotiated transactions by~~ this Section 5.04 to the contrary notwithstanding, the Company ~~or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment~~ shall be entitled to make such reductions in the ~~Conversion Price~~ conversion price, in addition to those required by this Section 5.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable; provided that in no event shall such conversion price be less than the par value of the Common Stock at the time such reduction is made. No adjustment to the conversion price pursuant to ~~subsection (c) or (d) of~~ this ~~Section or this subsection (e) has been made, exceeds 12 1/2% of~~ Indenture shall reduce the ~~product of~~ conversion price below the ~~Current Market Price~~ then existing par value per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.of

Appears in 1 contract

Samples: Indenture (Icn Pharmaceuticals Inc)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a) In case the Company shall (i) ~~pay~~ issue Common Stock as a dividend ~~in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes)~~distribution on its capital stock, including the Common Stock, (ii) ~~make a distribution in~~ combine its outstanding shares of ~~Class A common stock to holders~~ Common Stock into a smaller number of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~shares, (iii) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock~~ shares, or (iv) ~~combine~~ issue by reclassification of its ~~outstanding~~ Common Stock any shares of ~~Class A common~~ capital stock ~~into a smaller number~~ of ~~shares of Class A common stock~~the Company, the ~~Conversion Price~~ conversion price in effect immediately prior to such action shall be adjusted so that the holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock ~~which he~~ of the Company that it would have owned or been entitled to receive immediately following such action had ~~the Note~~ such Security been converted immediately prior ~~thereto~~to the occurrence of such action. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record ~~date~~ date, in the case of a dividend or ~~distribution and shall become effective~~ distribution, or immediately after the effective ~~date~~ date, in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Securities thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any conversion agent as soon as practicable) shall determine the allocation of the adjusted conversion price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock. (b) In case the Company shall issue rights, warrants or options ~~or warrants~~ to all holders of ~~Class A common stock~~ its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share (as determined pursuant to subsection (f) ~~below~~of this Section 1304) of the ~~Class A common stock~~ Common Stock, the conversion price in effect immediately prior thereto shall be adjusted so that it shall equal the price determined by multiplying the conversion price in effect immediately prior to the date of issuance of such rights, warrants or options by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, warrants or options (immediately prior to such issuance) plus the number of shares that the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, warrants or options (immediately prior to such issuance) plus the number of additional shares of Common Stock offered for subscription or purchase. Such adjustment shall be made successively whenever any rights, warrants or options are issued, and shall become effective immediately after the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ shareholders entitled to receive such rights, warrants or options. In determining whether any rights, warrants or options entitle the holders to subscribe for or ~~warrants~~purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, warrants or options, the ~~Conversion Price~~ value of such consideration, if other than cash, to be determined by the Board of Directors (whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable); provided, however, that rights, warrants or options issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights, warrants or options (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events, shall, for purposes of this Section 1304, not be deemed issued until the occurrence of the earliest such specified event. (c) In case the Company shall distribute to all holders of its outstanding Common Stock any shares of capital stock (other than Common Stock), evidences of its indebtedness or assets (including securities and cash, but excluding any regular periodic cash dividend paid from surplus of the Company and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of this Section 1304) or rights, warrants or options to subscribe for or purchase securities of the Company (excluding those referred to in subsection (b) of this Section 1304), then in each such case the conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (as determined ~~as provided in~~ pursuant to the subsection (f) ~~below~~of this Section 1304) of the ~~Class A common stock on the record date mentioned below~~ Common Stock less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and shall be described in a ~~board resolution~~certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of the portion of the capital stock or the evidences of ~~indebtedness, shares~~ indebtedness or the assets so distributed to the holder of ~~capital stock, cash,~~ one share of Common Stock or of such rights~~, options~~, warrants or ~~other assets so distributed~~ options applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such Current Market Price per share of ~~the Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ shareholders entitled to receive such distribution~~. Notwithstanding the foregoing~~; provided, ~~in case Company shall distribute~~ however, that rights, warrants or options ~~or warrants~~ issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for ~~additional~~ or purchase shares of ~~Company's capital stock~~ securities of the Company (~~other than rights, options or warrants~~ excluding those referred to in subsection (b) ~~above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions~~ of this ~~subsection (c) of~~ Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"1304), ~~a number of Rights to be determined as follows:~~ which rights, warrants or options (i) if are deemed to be transferred with such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of ~~Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and~~ Common Stock, (ii) ~~if such conversion occurs after~~ are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in each case in clauses (i) through (iii) until the ~~Distribution Date~~occurrence of a specified event or events, shall, for purposes of this Section 1304, not be deemed issued until the ~~same number of Rights to which a holder~~ occurrence of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsearliest such specified event. (d) In case the Company shall, by dividend or otherwise, at any time make a distribution to all holders of ~~its Class A common stock~~ the Common Stock consisting exclusively in of cash (~~including any distributions of cash out of current or retained earnings of Company but~~ excluding any cash that is distributed as part of a distribution ~~requiring a Conversion Price adjustment pursuant~~ referred to in subsection (c) of this ~~Section~~Section 1304 or in connection with a transaction to which Section 1311 applies) in an aggregate amount that, together with ~~the sum of~~ (xA) the aggregate amount of any other distributions to all holders of the Common Stock made exclusively in cash (excluding any cash distributions referred to ~~all holders~~ in subsection (c) of ~~Class A common stock~~ this Section 1304 or in connection with a transaction to which Section 1311 applies) made within the 12 months preceding ~~the date fixed for determining the stockholders entitled to~~ such distribution ~~(the "Distribution Record Date")~~ and in respect of which no ~~Conversion Price~~ conversion price adjustment pursuant to ~~subsection (c) or (e) of this Section or~~ this subsection (d) has been made ~~plus~~ and (yB) the aggregate ~~amount~~ of ~~all Excess Payments~~ any cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of other consideration payable in respect of any previous tender ~~offers or other negotiated transactions~~ offer by the Company or ~~any of its Subsidiaries~~ a Subsidiary for ~~Class A common stock concluded~~ the Common Stock consummated within the 12 months preceding ~~the Distribution Record Date~~ such distribution and in respect of which no ~~Conversion Price~~ adjustment pursuant to ~~subsections (c) or~~ subsection (e) of this Section ~~or this subsection (d)~~ 1304 has been made, exceeds ~~12 1/2~~10% of the product of the Current Market Price per share (determined ~~as provided in~~ pursuant to subsection (f) of this ~~Section~~Section 1304) of the ~~Class A common stock~~ Common Stock on the ~~Distribution Record Date multiplied by~~ date fixed for determining the shareholders entitled to such distribution times the number of shares of ~~Class A common stock~~ Common Stock outstanding on ~~the Distribution Record Date (excluding shares held in the treasury of Company)~~such date, the ~~Conversion Price~~ conversion price shall be reduced ~~so that the same shall equal the price determined~~ by multiplying ~~such Conversion Price~~ the conversion price in effect immediately prior to the ~~effectiveness~~ Close of ~~the Conversion Price reduction contemplated by this subsection (d)~~ Business on such date of determination by a fraction of which the numerator shall be the Current Market Price per share (determined ~~as provided in~~ pursuant to subsection (f) of this ~~Section~~Section 1304) of ~~the Class A common stock~~ Common Stock on ~~the Distribution Record Date~~ such date of determination less the ~~sum of the aggregate~~ amount of cash ~~and the aggregate Excess Payments so distributed, paid or payable within~~ to be distributed at such ~~12-month period (including, without limitation, the distribution in respect of which such adjustment is being made)~~ time applicable to one share of ~~Class A common stock (~~Common Stock and the denominator of which shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day after such date of determination. (e) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be consummated and such tender offer shall involve an aggregate consideration having a fair market value (as determined in good faith by ~~dividing~~ the ~~sum~~ Board of Directors, whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may have been amended) that, together with (X) the aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable), of other consideration paid or payable in respect of any previous tender offer by the Company or a Subsidiary for all or any portion of the Common Stock consummated within the 12 months preceding the consummation of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (e) has been made, such cash plus the fair market value of other consideration to be calculated in each case as of the expiration of each such previous tender offer, and (Y) the aggregate amount of all cash ~~and~~ distributions to holders of Common Stock (excluding any cash that is distributed as part of a distribution referred to in subsection (c) of this Section 1304) within the ~~aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such~~ 12 months ~~(including, without limitation,~~ preceding the ~~distribution~~ consummation of such tender offer and in respect of which ~~such~~ no conversion price adjustment ~~is being~~ pursuant to this paragraph (e) has been made~~) by~~ , exceeds 10% of the ~~number~~ product of ~~shares of Class A common stock outstanding on~~ the ~~Distribution Record Date) and the denominator shall be such~~ Current Market Price per share (determined ~~as provided in~~ pursuant to subsection (f) of this ~~Section~~Section 1304) of the ~~Class A common stock~~ Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the Current Market Price per share (determined pursuant to subsection (f) of this Section 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration paid or payable to shareholders based on the ~~Distribution Record Date~~number of validly tendered shares to be purchased and not withdrawn prior to the Expiration Time (the number of shares so purchased being hereinafter referred to as the "Purchased Shares") and the denominator of which shall be the product of (i) such Current Market Price per share on the Expiration Time times (ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~Expiration Time. (f) For the purpose of any computation under subsections (b), (c), (d) and (e) ~~In case a tender offer or other negotiated transaction made by Company or~~ of this Section 1304, the Current Market Price per share of Common Stock on any ~~Subsidiary of Company for all or any portion~~ date shall be deemed to be the average of the ~~Class A common stock shall be consummated, if an Excess Payment is made~~ Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in ~~respect~~ determining such Daily Market Prices prior to the Time of Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such ~~tender offer~~ rights or ~~other negotiated transaction and the aggregate amount of~~ warrants, such ~~Excess Payment~~distribution, ~~together with the sum of (x) the aggregate amount of any distributions, by dividend~~ or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such ~~current negotiated transaction consideration or expiration of such current~~ tender offer, as the case may be, through such last full Trading Day prior to the Time of Determination. (g) In any case in which this Section 1304 shall require that an adjustment be made immediately following a record date or an effective date, the Company may elect to defer (but only until five Business Days following the ~~"Purchase Date")~~filing by the Company with the Trustee and any conversion agent of the certificate required by Section 1305) issuing to the holder of any Security converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the conversion price prior to adjustment, and as paying to ~~which no~~ such holder any amount of cash in lieu of a fractional share. (h) No adjustment in the ~~Conversion Price~~ conversion price shall be required to be made unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments that by reason of this subsection (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 1304 shall be made to the nearest cent or to the nearest 1/10,000th of a share, as the case may be. Anything in this Section 1304 to the contrary notwithstanding, the Company shall be entitled to make such reduction in the conversion price, in addition to those adjustments required by this Section 1304, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its shareholders shall not be taxable to the recipients. (i) In the event that at any time as a result of an adjustment made pursuant to subsection (~~c) or (d~~a) of this Section ~~or this subsection (e) has been made plus (y)~~ 1304, the ~~aggregate amount of all Excess Payments in respect~~ holder of any ~~other tender offers or other negotiated transactions by Company or~~ Security thereafter surrendered for conversion shall become entitled to receive any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% shares of the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of~~ Company other than shares of ~~Class A common stock outstanding on~~ Common Stock, thereafter the ~~Purchase Date (including~~ conversion price of such other shares so receivable upon conversion of any ~~tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ Security shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price~~ subject to adjustment from time to time in ~~effect immediately prior~~ a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable provisions with respect to ~~outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment~~ Common Stock contained in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this ~~Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date~~Article Thirteen.

Appears in 1 contract

Samples: Indenture (Kent Electronics Corp)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a) In case the Company shall hereafter (i) pay a dividend or make a distribution on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock of the Company which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection ~~(a)~~ shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a) the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in an Officers' Certificate filed with the Trustee and with any Conversion Agent) shall determine in good faith the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock. (b) In case the Company shall hereafter issue rights, warrants or options ~~or warrants~~ to ~~all~~ holders of ~~Class A common stock~~ its outstanding shares of Common Stock generally entitling them to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fe) ~~below~~of this Section 5.04) of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record date plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the total number of shares of ~~Class A common stock~~ Common Stock so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall be made successively whenever any such rights or warrants are distributed, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such ~~record date~~rights, warrants or options. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (~~b),~~ or the number of shares of ~~Class A common stock at any time outstanding shall not include shares held in~~ Common Stock issuable upon conversion of convertible securities or the ~~treasury~~ exchange of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsexchangeable securities actually issued). (c) In case the Company shall hereafter distribute to ~~all~~ holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its outstanding Common Stock generally evidences of indebtedness, ~~cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above)~~ cash or other assets (including ~~securities of Persons other than Company~~ securities, but excluding ~~(i)~~ those dividends, rights, warrants, options and distributions referred to above and excluding dividends or and distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11cash), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction the numerator of which ~~the numerator~~ shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fe) ~~below~~of this Section 5.04) of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and shall be described in ~~a board resolution~~an Officers' Certificate filed with the Trustee and with any Conversion Agent) of the portion of ~~the~~ such evidences of ~~indebtedness, shares of capital stock,~~ indebtedness or assets (but not cash~~, rights, options, warrants or other assets~~ ) so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of ~~the Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. ~~Notwithstanding the foregoing,~~ In any case in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of which this subsection (c) ~~of Section 9.6 make proper provision so that the holder of the Note who converts the Note~~ is applicable, subsection (~~or any portion thereof~~b) ~~after the record date for such distribution and prior to the expiration or redemption of the Rights~~ shall not be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsapplicable. (d) In case the Company shall, (i) by dividend or otherwise, at any time ~~make a distribution~~ distribute to all holders of its ~~Class A common stock exclusively in~~ Common Stock cash (~~including any distributions of cash out of current or retained earnings of Company but~~ excluding any cash ~~that is distributed as part~~ portions of ~~a distribution requiring a Conversion Price adjustment pursuant~~ distributions referred to ~~subsection~~ in (c) ~~of this Section~~above or cash distribution upon a merger or consolidation to which Section 5.10 applies) in an aggregate amount that, combined together with ~~the sum of~~ (xa) ~~the aggregate amount of any~~ all other such all-cash distributions made ~~exclusively in cash to all holders of Class A common stock~~ within the preceding 12 months ~~preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and~~ in respect of to which no ~~Conversion Price~~ adjustment ~~pursuant to subsection (c) or (e) of this Section or this subsection (d)~~ has been made ~~plus~~ and (yb) ~~the aggregate amount~~ any cash and their fair market of ~~all Excess Payments~~ other consideration paid or payable in respect of any tender offers ~~or other negotiated transactions~~ by the Company ~~or any of its Subsidiaries~~ for ~~Class A common stock concluded~~ Common Stock concluding within the preceding 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment ~~in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e)~~ has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.exceeds

Appears in 1 contract

Samples: Indenture (Acclaim Entertainment Inc)

Appears in 1 contract

Samples: Indenture (Loewen Group International Inc)

Appears in 1 contract

Samples: Senior Subordinated Indenture (Service Corporation International)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a) ~~In case~~ If the Company shall (i) pay a dividend or other distribution, in ~~shares~~ Common Stock, on any class of ~~Class A common stock to holders~~ Capital Stock of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~the Company, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii)~~ subdivide ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ by any means or (iviii) combine ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of shares ~~of Class A common stock~~by any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock that such Holder would have owned ~~immediately following~~ or have been entitled to receive upon the happening of such ~~action~~ event had ~~the~~ such Note been converted immediately prior ~~thereto~~to the relevant record date or, if there is no such record date, the effective date of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection (a~~Section 1204(a) shall become effective immediately after the record date in for the ~~case~~ determination of a stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date ~~in the case~~ of a such subdivision or combination, as the case may be. (b) ~~In case~~ If the Company shall (i) issue ~~rights, options~~ or ~~warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock~~ distribute (~~or securities convertible into Class A common stock)~~ at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share ~~(as determined pursuant to subsection (f) below)~~ of ~~the Class A common stock~~ such Capital Stock on the ~~record~~ date ~~for determining the~~ of such issuance or distribution) Capital Stock generally to holders of ~~the Class A common stock entitled~~ Common Stock or to ~~receive such rights, options~~ holders of any class or ~~warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (excluding an issuance or distribution of Common Stock described in ~~effect immediately prior~~ Section 1204(a)) or (ii) issue or distribute generally to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or ~~warrants~~ convertible or exchangeable securities entitling the ~~holders~~ holder thereof to subscribe for, purchase, convert into or exchange for ~~or purchase securities (other~~ Capital Stock at a price per share less than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Capital Stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.the

Appears in 1 contract

Samples: Indenture (Westbridge Capital Corp)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time by the Company as follows: (a) In case the Company shall (i) pay a dividend in shares of Class A ~~common stock~~ Common Stock to the holders of the Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii) make a distribution in shares of Class A ~~common stock~~ Common Stock to the holders of the Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (iii) 49 subdivide or split its outstanding ~~shares of~~ Class A ~~common stock~~ Common Stock into a ~~greater~~ larger number of ~~shares of Class A common stock~~ shares, or (iv) combine its outstanding ~~shares of~~ Class A ~~common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive ~~the~~ that number of shares of Class A ~~common stock~~ Common Stock which he it would have owned ~~immediately following~~ or been entitled to receive had such ~~action had the~~ Note been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately after~~ as of the close of business on the record date in the case of a dividend in shares or distribution and shall become effective ~~immediately after~~ as of the close of business on the effective date in the case of a ~~subdivision~~ subdivision, split or combination. (b) In case (i) the Company shall issue ~~rights, options~~ rights or warrants to all or substantially all holders of its Class A ~~common stock~~ Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to subscribe for or purchase shares of Class A ~~common stock~~ Common Stock (or securities convertible into Class A ~~common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share of Class A Common Stock (as determined ~~pursuant to~~ in accordance with subsection (~~f) below~~g) of this Section 4.06) at the record date for the determination of shareholders entitled to receive such rights or warrants or (ii) the Company shall sell or issue any Class A ~~common stock~~ Common Stock and the consideration per share of Class A Common Stock to be paid upon such issuance or subscription is more than 5% less than the Current Market Price per share of Class A Common Stock or the Company shall sell or issue warrants, rights or other convertible securities to subscribe for or purchase shares of Class A Common Stock at a price per share more than 5% less than the Current Market Price per share of Class A Common Stock (each as determined in accordance with subsection (g) of this Section 4.06) on the date of such sale or issuance, the Conversion Price in effect as of the close of business on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price~~ thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect ~~immediately prior to such~~ on the record date by a fraction of which the numerator shall be the number of shares of Class A ~~common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record ~~date~~ date, plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares of Class A ~~common stock~~ Common Stock so offered ~~(to the holders of outstanding Class A common stock) for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and of which the denominator shall be the number of shares of Class A ~~common stock~~ Common Stock outstanding on such record date plus the number of additional shares of Class A ~~common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such ~~adjustments~~ adjustment shall be made successively whenever any such rights, warrants or convertible securities are issued, and shall become effective ~~immediately after~~ as of the close of business on such record date. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Class A Common Stock actually issued (~~b),~~ or the number of shares of Class A ~~common stock at any time outstanding shall not include shares held in the treasury~~ Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued). (c) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock, cash (excluding (x) any regular cash dividend on the Common Stock to the extent that the aggregate cash dividend per share of Common Stock in any four fiscal quarters does not exceed the greater of (A) the amount per share of Common Stock of the cash dividend on the Common Stock for the preceding four fiscal quarters to the extent that such dividend for the preceding four fiscal quarters did not require any adjustment of the Conversion Price pursuant to this Section 4.06(c) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Prices (as set forth in Section 4.06(g)) during the ten Trading Days immediately prior to the date of declaration of such dividend, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and (z) any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to Section 4.06(e)), then, in such case, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the record date of such action by a fraction of which the numerator shall be the Current Market Price of the Class A Common Stock on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be the Current Market Price of the Class A Common Stock on such record date, such decrease shall be effective immediately prior to the opening of business on the day following the record date of such action; PROVIDED, HOWEVER, that in the event the portion of cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Class A Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted each Note on the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 4.06(c) as a result of a distribution that is a regular dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the regular cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 4.06(c) above as a result of a distribution that is not a regular dividend, such adjustment shall be based upon the full amount of the distribution. (d) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that, as of the last time (the "EXPIRATION TIME") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), exceeds the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the product of the number of Class A Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, less the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "PURCHASED SHARES") and the denominator shall be the product of the number of Class A Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such tender or exchange offer has not been made. (e) In case the Company shall distribute to all or substantially all holders of its Class A Common Stock any shares of capital stock of the Company (other than Class A Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person), or shall distribute to all holders of its Class A ~~common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options~~ Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase any of its securities (~~other than rights, options or warrants described~~ excluding those referred to in subsection (b) ~~above) or other assets (including securities~~ of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by this Section ~~9.11~~4.06), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect ~~immediately prior to~~ as of the close of business on the record date of for such distribution by a fraction of which the numerator shall be the Current Market Price ~~(determined as provided in subsection (f) below)~~ of the Class A ~~common stock~~ Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and ~~described~~ set forth in a ~~board resolution~~Board Resolution delivered to the Trustee in an Officers' Certificate) of the portion of the ~~evidences of indebtedness, shares of~~ capital stock, ~~cash, rights, options, warrants~~ evidences of indebtedness or other assets so distributed or of such rights or warrants applicable to one share of Class A ~~common stock~~ Common Stock (determined on the basis of the number of shares of ~~the~~ Class A ~~common stock~~ Common Stock outstanding on the record date), and of which the denominator shall be ~~such~~ the Current Market Price per share (as determined in accordance with subsection (g) of this Section 4.06) of the Class A ~~common stock~~Common Stock on such record date. Such adjustment shall become effective ~~immediately after~~ as of the close of business on the record date for the determination of ~~the holders of Class A common stock~~ shareholders entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in subsection (b) ~~above~~of this Section 4.06) ("~~Rights~~RIGHTS") pro rata to ~~all~~ holders of Class A ~~common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 4.06, make proper provision so that ~~the~~ each holder of ~~the~~ a Note who converts ~~the~~ such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A ~~common stock~~ Common Stock issuable upon such conversion (the "~~Conversion Shares~~CONVERSION SHARES"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "~~Distribution Date~~DISTRIBUTION DATE"), the same number of Rights to which a holder of a number of shares of Class A ~~common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the ~~Rights;~~ Rights and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A ~~common stock~~ Common Stock into which the principal amount of the Note so converted was convertible ~~immediately prior to~~ as of the close of business on the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (df) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a ~~distribution requiring~~ tender or exchange offer made by a ~~Conversion Price adjustment pursuant to subsection (c)~~ Person other than the Company or any Subsidiary of ~~this Section) in~~ the Company for an ~~aggregate~~ amount ~~that, together with~~ which increases the ~~sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders~~ offeror's ownership of Class A ~~common stock within~~ Common Stock to more than 35% of the ~~12 months preceding~~ Class A Common Stock outstanding and shall involve the ~~date fixed for determining~~ payment by such Person of consideration per share of Class A Common Stock having a fair market value (as determined by the ~~stockholders entitled to such distribution~~ Board of Directors, whose determination shall be conclusive, and described in a Board Resolution) at the last time (the "~~Distribution Record Date~~TENDER EXPIRATION TIME") ~~and in respect of which no Conversion Price adjustment~~ tenders or exchanges may be made pursuant to ~~subsection~~ such tender or exchange offer (cas it shall have been amended) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, that exceeds ~~12 1/2% of the product of~~ the Current Market Price per share ~~(determined as provided in subsection (f) of this Section)~~ of the Class A ~~common stock~~ Common Stock on the ~~Distribution Record Date multiplied by~~ Trading Day next succeeding the ~~number~~ Tender Expiration Time, and in which, as of ~~shares~~ the Tender Expiration Time, the Board of ~~Class A common stock outstanding on~~ Directors is not recommending rejection of the ~~Distribution Record Date (excluding shares held in the treasury of Company)~~offer, the Conversion Price shall be ~~reduced~~ decreased so that the same shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the ~~effectiveness of the Conversion Price reduction contemplated by this subsection (d)~~ Tender Expiration Time by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding (including any tendered or exchanged shares) at the Tender Expiration Time multiplied by the Current Market Price ~~per share (determined as provided in subsection (f) of this Section)~~ of the Class A ~~common stock~~ Common Stock on the ~~Distribution Record Date less~~ Trading Day next succeeding the Tender Expiration Time and the denominator shall be the sum of (x) the ~~aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period~~ fair market value (~~including, without limitation, the distribution in respect of which such adjustment is being made~~determined as aforesaid) ~~applicable to one share of Class A common stock (which shall be determined by dividing the sum~~ of the aggregate ~~amount~~ consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of ~~cash~~ the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the ~~aggregate Excess Payments~~ Tender Expiration Time (the shares deemed so ~~distributed~~accepted, ~~paid or payable with respect~~ up to ~~outstanding shares~~ any such maximum, being referred to as the "ACCEPTED PURCHASED SHARES") and (y) the product of ~~Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by~~ the number of shares of Class A ~~common stock~~ Common Stock outstanding on (less any Accepted Purchased Shares) at the ~~Distribution Record Date)~~ Tender Expiration Time and the ~~denominator shall be such~~ Current Market Price ~~per share (determined as provided in subsection (f) of this Section)~~ of the Class A ~~common stock~~ Common Stock on the ~~Distribution Record Date~~Trading Day next succeeding the Tender Expiration Time, such ~~reduction~~ decrease to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date. (e)~~ Tender Expiration Time. In ~~case a tender offer or other negotiated transaction made by Company or~~ the event that such Person is obligated to purchase shares pursuant to any ~~Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of~~ such tender ~~offer~~ or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender exchange offer, ~~as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c)~~ but such Person is permanently prevented by applicable law from effecting any such purchases or ~~(d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of~~ all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)such purchases are rescinded, the Conversion Price shall again be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior~~ adjusted to ~~the effectiveness of~~ be the Conversion Price ~~reduction contemplated by~~ which would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this ~~subsection~~ Section 4.06(f) shall not be made if: (ea) ~~by a fraction of which the numerator shall be the Current Market Price per share (determined~~ as ~~provided in subsection (f) of this Section)~~ of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitationTender Expiration Time, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable offering documents with respect to ~~outstanding shares~~ such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article 6; or (b) the Initial Purchaser or any of ~~Class A common stock within such 12 months~~ its Affiliates do not beneficially own all of the Notes. (~~including, without limitation~~g) For purposes of this Section 4.06, the ~~Excess Payment in respect of which such adjustment is being made) by~~ following terms shall have the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.meaning indicated:

Appears in 1 contract

Samples: Indenture (Metromedia Fiber Network Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a1) In case the Company shall (i1) pay a dividend in shares of Class A ~~common stock~~ Common Stock to holders of Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii2) make a distribution in shares of Class A ~~common stock~~ Common Stock to holders of Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~iii~~3) subdivide its outstanding shares of Class A ~~common stock~~ Common Stock into a greater number of shares of Class A ~~common stock~~ Common Stock or (iv4) combine its outstanding shares of Class A ~~common stock~~ Common Stock into a smaller number of shares of Class A ~~common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A ~~common stock~~ Common Stock which he would have owned immediately following such action had ~~the Note~~ such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a1) shall become effective immediately after the ~~record date~~ Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b2) In case the Company shall issue ~~rights, options~~ rights or warrants to substantially all holders of Class A ~~common stock~~ Common Stock entitling them (for a period commencing no earlier than the Record Date for the determination of holders of Class A Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such Record Date) to subscribe for or purchase shares of Class A ~~common stock~~ Common Stock (or securities convertible into Class A ~~common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price per share~~ current market price (as determined pursuant to subsection (f6) below) of the Class A ~~common stock~~ Common Stock on ~~the record date for determining the holders of the Class A common stock entitled to receive~~ such ~~rights, options or warrants~~Record Date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such ~~record date~~ Record Date by a fraction of which the numerator shall be the number of shares of Class A ~~common stock~~ Common Stock outstanding ~~as of the close of business~~ on such ~~record date~~ Record Date, plus the number of shares of Class A ~~common stock~~ Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of Class A ~~common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and of which the denominator shall be the number of shares of Class A ~~common stock~~ Common Stock outstanding on such ~~record date~~ Record Date plus the number of additional shares of Class A ~~common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsRecord Date. (c3) In case the Company shall distribute to all holders of Class A ~~common stock~~ Common Stock shares of capital stock of the Company (other than Class A ~~common stock)~~Common Stock, evidences of ~~indebtedness~~indebtedness or other assets (other than cash dividends), ~~cash, rights, options~~ or shall distribute to substantially all holders of Class A Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those referred to in subsection (b2) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price (determined as provided in subsection (f6) below) of the Class A ~~common stock~~ Common Stock on the ~~record date~~ Record Date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a ~~board resolution~~resolution of the Board of Directors) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of Class A ~~common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price of the Class A ~~common stock~~Common Stock. Such adjustment shall become effective immediately after the ~~record date~~ Record Date for the determination of the holders of Class A ~~common stock~~ Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in subsection (b2) above) ("Rights") pro rata to ~~all~~ holders of Class A ~~common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 2.3(f), make proper provision so that ~~the holder~~ each Holder of ~~the~~ a Note who converts ~~the~~ such Note (or any portion thereof) after the ~~record date~~ Record Date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A ~~common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A ~~common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A ~~common stock~~ Common Stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d4) In case the Company shall, by dividend or otherwise, at any time ~~make a distribution~~ distribute to all holders of its Class A ~~common stock exclusively in~~ Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to ~~subsection~~ paragraph (c3) of this ~~Section~~Section 2.3) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions ~~made exclusively in cash~~ to all holders of its Class A ~~common stock~~ Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to ~~subsection~~ paragraphs (c3) or (e5) of this Section 2.3 or this ~~subsection~~ paragraph (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d4) has been made, exceeds ~~12 1/2~~10% of the product of the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Distribution Record Date ~~multiplied by~~ times the number of shares of Class A ~~common stock~~ Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (d4) by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Distribution Record Date less the ~~sum~~ amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A ~~common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Distribution Record Date) of Class A Common Stock and the denominator shall be such ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e5) In case a tender offer ~~or other negotiated transaction~~ made by the Company or any Subsidiary ~~of Company~~ for all or any portion of the Class A ~~common stock~~ Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer ~~or other negotiated transaction~~ and the ~~aggregate~~ amount of such Excess Payment, together with the sum of (x) the aggregate amount of ~~any distributions, by dividend or otherwise,~~ all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Class A ~~common stock~~ Common Stock made in cash (specifically including ~~any~~ distributions of cash out of ~~current or~~ retained ~~earnings of Company)~~ earnings), in each case made within the 12 months preceding the ~~date of payment of such current negotiated transaction consideration or~~ expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment ~~in the Conversion Price~~ pursuant to ~~subsection~~ paragraph (c3) or paragraph (d4) of this Section 2.3 or this ~~subsection~~ paragraph (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e5) has been made, exceeds ~~12 1/2~~10% of the product of the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Purchase Date ~~multiplied by~~ times the number of shares of Class A ~~common stock~~ Common Stock outstanding ~~on the Purchase Date~~ (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (e5) by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Purchase Date less the ~~sum~~ amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of ~~cash and the aggregate~~ such Excess Payments ~~so distributed~~and such cash distributions, ~~paid or payable within such 12 month period (including, without limitation,~~ divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A ~~common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Purchase Date) of Class A Common and the denominator shall be such ~~Current Market Price~~ current market price per share (determined as provided in ~~subsection~~ paragraph (f6) of this ~~Section~~Section 2.3) of the Class A ~~common stock~~ Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date. (6) The current market price per share of Class A Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) ten (10) consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination. (7) In any case in which this Section 2.3(f) shall require that an adjustment be made immediately following a Record Date, the Company may elect to defer (but only until five (5) Business Days following the filing by the Company with the Trustee of the certificate described in Section 2.3(j) hereof) issuing to the Holder of any Note converted after such Record Date the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares. (8) Upon the occurrence of a Change of Control, in which both (a) the Company's stockholders receive consideration per share of Class A common stock that is greater than the Conversion Price, without giving effect to the adjustment described below, at the effective time of the Change of Control, and (b) at least 10% of the total consideration paid to the Company's stockholders consists of cash, cash equivalents, securities or other assets (other than publicly traded securities), which are referred to herein as "non-public consideration." In such circumstances, upon conversion of the Notes after the Change of Control, in addition to the Class A Common Stock or other securities deliverable upon the conversion of the Notes as described in the other provisions of this Section 2.3, including clauses (1) through (7) of this Section 2.3(f), the Holder will receive a number of publicly traded securities of the acquiror determined through the following calculation: PV cashflows X (non-public consideration/total consideration) Acquiror stock price Where: PV cashflows = the present value of the aggregate interest payments that would have been payable on the Notes from the date of conversion through February 16, 2004, calculated using a discount rate equal to the yield to maturity of U.S. Treasury securities having a maturity closest to, but not later than, February 16, 2004, Total consideration = the total value of the consideration payable to the Company's stockholders at the effective time of the Change of Control, with the value of any assets or securities other than cash or a publicly traded security being determined in good faith by the Company's Board of Directors based upon an opinion as to that value obtained from an accounting, appraisal or investment banking firm of international standing, Acquiror stock price = the price per security of the acquiror's publicly traded securities delivered in connection with the Change of Control transaction at the effective time of the Change of Control provided, however, that if the consideration received by the Company's stockholders in respect of the Change of Control consists of at least 75% non-public consideration or if the acquiror's common stock is not publicly traded, then upon conversion of the Notes after the Change of Control, in lieu of issuing additional securities of the acquiror, as set forth above, the Holder will be entitled to receive an additional amount in cash calculated as follows: PV cashflows X (non-public consideration/total consideration)

Appears in 1 contract

Samples: First Supplemental Indenture (Adelphia Communications Corp)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had ~~the Note~~ such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by the Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to all holders of Class A common stock shares of capital stock of the Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than the Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.common

Appears in 1 contract

Samples: Modification Agreement (Easylink Services Corp)

Adjustment of Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be ~~subject to adjustment~~ adjusted from time to time as follows: (a1) In case the Company ~~shall~~ shall, at any time or from time to time while the Securities of any series are outstanding, (i) pay a dividend on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a ~~greater~~ larger number of ~~shares of Class A common stock~~ shares, or (iviii) combine its outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price for such series in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security of such series thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock or other securities of the Company which he would have owned ~~immediately following~~ or have been entitled to receive after the happening of any of the events described above, had such ~~action had the Note~~ Convertible Security of such series been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection~~ subdivision (a) shall become ~~effective immediately after the record date~~ effective, in the case of a ~~dividend or distribution~~ dividend, on the payment date retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such dividend, subject to the provisions of paragraph (7) of this Section 1605, and shall become effective ~~immediately after the effective date~~ in the case of a subdivision or combination immediately after the opening of business on the day following the day when such subdivision or combination, as the case may be, becomes effective. (b2) In case the Company ~~shall~~ shall, at any time or from time to time while the Convertible Securities of any series are outstanding, issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ its shares of Common Stock entitling them (for a period expiring within 45 days of the record date mentioned below) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share of Common Stock (as ~~determined pursuant to subsection~~ defined in paragraph (f4) below) ~~of the Class A common stock on the~~ at such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion Price ~~shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ of any series of Convertible Securities in effect immediately prior to the issuance of such ~~record date~~ rights or warrants shall be adjusted as follows: the number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series was theretofore convertible shall be multiplied by a ~~fraction~~ fraction, of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business on~~ immediately prior to such record date plus the number of additional shares of ~~Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so~~ Common Stock offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or ~~purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)~~purchase, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on immediately prior to such record date plus the number of ~~additional~~ shares which the aggregate offering price of ~~Class A common stock~~ the total number of shares so offered would purchase at such current market price; and the Conversion Price for ~~subscription or purchase (or~~ such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares into which ~~the~~ $1,000 principal amount of Securities of such series shall be convertible ~~securities so offered are convertible)~~as aforesaid. Such ~~adjustments~~ adjustment shall become effective on the date of such issuance retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such ~~record date. For~~ rights or warrants, subject to the ~~purposes~~ provisions of paragraph (7) of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of CompanySection 1605. In determining whether any ~~rights, options~~ rights or warrants entitle the holders to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock at less than ~~the Current Market Price~~such current market price, and in determining the aggregate offering price of such ~~shares of Class A common stock~~shares, there shall be taken into account any consideration received by the Company for such ~~rights,~~ rights or warrants~~, or options~~, the value of such consideration, if ~~any,~~ other than cash, to be determined by the Board of Directors. (c3) In case the Company ~~shall~~ shall, at any time from time to time while the Convertible Securities of any series are outstanding, distribute to all holders of ~~Class A common stock~~ shares of ~~capital stock of Company (other than Class A common stock),~~ its Common Stock evidences of ~~indebtedness, cash, rights, options~~ its indebtedness or securities or assets (excluding cash dividends or cash distributions payable out of consolidated net earnings or retained earnings) or rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase securities~~ shares of Common Stock at a price per share less than the current market price per share of Common Stock, determined in the manner set forth in paragraph (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d4) below, but excluding rights or warrants referred to in paragraph (ii2) ~~dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation~~above, ~~merger or transfer of assets covered by Section 9.11), then in each such case~~ the Conversion Price ~~shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price~~ for such series of Convertible Securities in effect immediately prior to such distribution shall be adjusted by multiplying the ~~date~~ number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such ~~distribution~~ series of Convertible Securities was theretofore convertible by a ~~fraction~~ fraction, of which the numerator shall be the ~~Current Market Price~~ current market price per share of Common Stock (~~determined~~ as ~~provided~~ defined in ~~subsection~~ paragraph (f4) below) ~~of the Class A common stock~~ on the record date ~~mentioned below less the fair market value on~~ for such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)distribution, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock, less the then fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive) of the portion of such evidences of indebtedness, securities or assets or of such subscription rights or warrants so distributed applicable to one share of Common Stock; and the Conversion Price for such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares into which $1,000 principal amount of Convertible Securities of such series shall be convertible as aforesaid. Such adjustment shall become effective on the date of such distribution retroactively to immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~record date for the determination of shareholders entitled to receive such distribution, subject to the provisions of paragraph (7) of this Section 1605. For the purposes of this paragraph (3) consolidated net earnings or retained earnings shall be computed by adding thereto all charges against retained earnings on account of dividends paid in shares of Common Stock in respect of which the Conversion Price has been adjusted, all as determined by Independent Public Accountants, whose determination shall be conclusive. (e4) ~~In case a tender offer or other negotiated transaction made by Company or~~ For the purpose of any ~~Subsidiary~~ computation under paragraphs (2) and (3) above, the current market price per share of ~~Company for all or~~ Common Stock at any ~~portion~~ date shall be deemed to be the average of the ~~Class A common stock~~ market values of the shares of Common Stock for the ten consecutive Business Days immediately preceding the day in question. The market value of the Common Stock for each day shall be ~~consummated~~determined as provided in Section 1603 hereof. (5) The Company may make such reductions in the Conversion Price for any series of Convertible Securities, ~~if an Excess Payment is made~~ in ~~respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of~~ addition to those required by paragraphs (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"1), (2) and (3) of this Section as it considers to ~~which~~ be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients. (6) Except as herein otherwise provided, no adjustment in the Conversion Price ~~pursuant~~ for any series of Convertible Securities shall be made by reason of the issuance, in exchange for cash, property or services, of shares of Common Stock, or any securities convertible into or exchangeable for shares of Common Stock, or carrying the right to ~~subsection~~ purchase any of the foregoing. (c7) If the Company shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive any dividend or ~~(d) of this Section~~ any subscription or ~~this subsection (e) has been made plus (y)~~ purchase rights or any distribution and shall, thereafter and before the ~~aggregate amount of all Excess Payments in respect~~ distribution to shareholders of any ~~other tender offers~~ such dividend, subscription or ~~other negotiated transactions~~ purchase rights or distribution, legally abandon its plan to pay or deliver such dividend, subscription or purchase rights or distribution, then no adjustment of the Conversion Price for any series of Convertible Securities shall be required by ~~Company or any~~ reason of ~~its Subsidiaries for Class A common stock concluded within~~ the ~~12 months preceding the Purchase Date and in respect~~ taking of ~~which no~~ such record. (8) No adjustment in the Conversion Price ~~pursuant to subsection (c)~~ for any series of Convertible Securities shall be required unless such adjustment would require an increase or ~~(d)~~ decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this ~~Section~~ paragraph (8) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fifteen shall be made to the nearest cent or ~~this subsection~~ to the nearest one-hundredth of a share, as the case may be. (e9) Whenever the Conversion Price for any series of Convertible Securities is adjusted as herein provided, the Company shall (i) forthwith place on file at the Principal Office of the Trustee an Officers’ Certificate showing in detail the facts requiring such adjustment and the Conversion Price after such adjustment and shall exhibit the same from time to time to any Holder of Convertible Securities of such series desiring an inspection thereof, and (ii) cause a notice stating that such adjustment has been ~~made~~effected and the adjusted Conversion Price to be mailed to the Holders of Registered Convertible Securities of such series at their last addresses as they shall appear on the Security Register. (10) The Company may delete, ~~exceeds 12 1/2%~~ modify or vary any of the ~~product~~ provisions applicable to conversion of the ~~Current Market Price per share (determined~~ Convertible Securities of any series, or may add new provisions applicable thereto, all as ~~provided~~ may be contained in ~~subsection (f)~~ the Board Resolutions and Officers’ Certificate or supplemental indenture establishing such series. Section 1606. Effect of ~~this Section)~~ Reclassifications, Consolidations, Mergers or Sales on Conversion Privilege. In case of any reclassification or change of outstanding shares of the ~~Class A common~~ class of Common Stock issuable upon conversion of the Convertible Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case of any merger or consolidation of the Company with one or more other corporations (other than a merger or consolidation in which the Company is the continuing corporation and which does not result in any reclassification or change of outstanding shares of Common Stock issuable upon conversion of the Securities), or in case of the merger of the Company into another corporation, or in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, the Holder of Convertible Securities then outstanding shall have the right to convert such Convertible Security into the kind and amount of shares of capital stock ~~on the Purchase Date multiplied~~ or other securities and property, including cash, receivable upon such reclassification, change, consolidation, merger, sale or conveyance by a holder of the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying Common Stock into which such ~~Conversion Price in effect~~ Convertible Security might have been converted immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. In any such case the ~~effectiveness~~ Company, or such successor or purchasing corporation, as the case may be, shall execute with the Trustee one or more supplemental indentures (which shall conform to the Trust Indenture Act of 1939 as in force at the date of the ~~Conversion Price reduction contemplated by~~ execution of such supplemental indenture) containing provisions to the effect set forth above in this ~~subsection (e) by a fraction of~~ Section 1606 and providing further for adjustments which ~~the numerator~~ shall be as nearly equivalent as may be practicable to the ~~Current Market Price per share (determined as~~ adjustments provided for in ~~subsection (f)~~ this Article Fifteen; and any such adjustment which shall be approved by the Board of Directors and set forth in such supplemental indenture or supplemental indentures shall be conclusive for all purposes of this Section~~) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash~~ , and the ~~aggregate Excess Payments so distributed, paid~~ Trustee shall not be under any responsibility to determine the correctness of any provision contained in such supplemental indenture or ~~payable within such 12 month period (including, without limitation,~~ supplemental indentures relating to either the ~~Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate~~ kind or amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of ~~Class A common~~ stock ~~outstanding on~~ or securities or property receivable by Holders of Securities of any series upon the ~~Purchase Date) and the denominator shall be~~ conversion of their Convertible Securities after any such ~~Current Market Price per share (determined as provided in subsection (f)~~ reclassification, change, consolidation, merger, sale or conveyance. The above provisions of this ~~Section) of the Class A common stock on the Purchase Date~~Section 1606 shall similarly apply to successive reclassifications, ~~such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date~~changes, consolidations, mergers, sales and conveyances.

Appears in 1 contract

Samples: Subordinated Indenture (Entegra Financial Corp.)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case ~~Company~~ the Issuer shall (i1) make or pay a dividend (or other distribution) in shares of ~~Class A common stock to holders~~ Common Stock on any class of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Capital Stock of the Issuer, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which~~ Common Stock that he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (i) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case ~~Company~~ the Issuer shall issue rights, options or warrants to all or substantially all holders of ~~Class A common stock~~ Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) ~~of the Class A common stock~~ on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (i) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, of ~~which~~ which (ii) the numerator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of ~~which~~ which (iii) the denominator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of ~~Class A common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)i) below, after the ~~number~~ record date for the determination of ~~shares of Class A common stock at~~ holders entitled to receive such rights, options or warrants; provided, however, that if any ~~time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of~~ such ~~Class A common stock. The Company shall not issue any~~ rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the ~~Board~~ Issuer as described in this subsection (b) are only exercisable upon the occurrence of ~~Directors~~certain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur. (c) In case ~~Company~~ the Issuer or any Subsidiary of the Issuer shall distribute to all or substantially all holders of ~~Class A common stock shares~~ Common Stock, any of ~~capital stock of Company (other than Class A common stock)~~its assets, evidences of indebtedness, ~~cash, rights, options~~ cash or ~~warrants entitling the holders thereof to subscribe for~~ other assets or ~~purchase securities (~~shares of Capital Stock other than ~~rights~~Common Stock (including securities, ~~options~~ but other than (x) dividends or ~~warrants described~~ distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market~~ then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as determined by the Board of Directors of the Issuer whose determination shall be conclusive) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (i) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (d) In case the Issuer or any Subsidiary of the Issuer shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 14.6 applies) to all or substantially all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender or exchange offer by the Issuer or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Issuer's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (e) In case there shall be completed a tender or exchange offer made by the Issuer or any Subsidiary of the Issuer for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 14.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the ~~Class A common stock~~ Common Stock on the ~~record date mentioned below less~~ Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share on the Expiration Time times (ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be determined by the Board of Directors of the Issuer (whose determination shall be conclusive) and described in a Board Resolution. (f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Issuer commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the " 'ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of Last Sale Price in Section 14.3 hereof, the fair value of the Common Stock on such ~~record date (~~day, as determined by the Board of ~~Directors,~~ Directors of the Issuer (whose determination shall be ~~conclusive evidence~~ conclusive), shall be used. For purposes of this paragraph, the term " 'ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the Nasdaq National Market (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer. (g) In addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Issuer will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. (h) In the event the Issuer elects to make such a reduction in the Conversion Price, the Issuer will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price of the Notes; provided that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such ~~fair market value and described~~ laws. (i) In any case in ~~a board resolution)~~ which this Section 14.5 shall require that an adjustment (including by reason of the ~~portion~~ last sentence of subsection (a) or (c) above) be made immediately following a record date, the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the ~~evidences~~ event giving rise to such adjustment), in which case the Issuer shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 14.3 hereof or issuing to the Holder of ~~indebtedness,~~ such Security the number of shares of ~~capital stock, cash, rights, options, warrants~~ Common Stock and other Capital Stock of the Issuer (or other assets ~~so distributed applicable to one share of Class A common stock (determined on the basis~~ or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the ~~Class A common stock outstanding~~ Issuer issuable thereupon only on the ~~record date)~~basis of the Conversion Price prior to adjustment, and (ii) not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate Cash payment pursuant to Section 14.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Issuer (or other assets or securities) issuable on such conversion. (j) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this subsection (j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Issuer. Unless and until a Responsible Officer of the Trustee shall have received such Officers' Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the conversion Price and may assume without inquiry that the last Conversion Price of which the ~~denominator shall be such Current Market Price~~ Trustee has knowledge remains in effect. (k) In the event that the Issuer distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 14.5 to the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options extent this paragraph (k) applies thereto) or warrants ~~to subscribe for additional shares of Company's capital stock~~ (other than ~~rights, options or warrants~~ those referred to in subsection (b) above) ~~("Rights")~~ pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, ~~Company may~~so long as any such rights or warrants have not expired or been redeemed by the Issuer, ~~in lieu of making any adjustment pursuant to~~ the ~~foregoing provisions of this subsection (c) of Section 9.6~~ Issuer shall make proper provision so that the ~~holder~~ Holder of ~~the~~ any Note ~~who converts the Note (or any portion thereof) after the record date~~ surrendered for ~~such distribution and prior to the expiration or redemption of the Rights shall~~ conversion will be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of ~~Rights~~ rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of ~~Rights~~ rights or warrants of separate certificates evidencing such ~~Rights~~ rights or warrants (the "Distribution Date"), the same number of ~~Rights~~ rights or warrants to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the ~~Rights;~~ rights or warrants, and (ii) if such conversion occurs after ~~the~~ such Distribution Date, the same number of ~~Rights~~ rights or warrants to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of ~~the~~ such Note so converted was convertible immediately prior to ~~the~~ such Distribution Date would have been entitled on ~~the~~ such Distribution Date in accordance with the terms and provisions of and applicable to the ~~Rights~~rights or warrants. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 1 contract

Samples: First Supplemental Indenture (Emcor Group Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment ~~from time to time~~ as follows: (a) In case the Company shall at any time or from time to time (i) pay a dividend or make a distribution (other than a dividend or distribution paid or made to the holder of this Note in the manner provided in Section 4) on the outstanding shares of Common Stock in shares of ~~Class A common stock~~ Common Stock or other equity interests (which, for purposes of this Section 7.4 shall include, without limitation, any dividends or distributions in the form of options, warrants or other rights to ~~holders~~ acquire shares of ~~Class A common stock (~~Common Stock or ~~any event treated as such for U.S. Federal income tax purposes)~~other equity interests) of the Company, (ii) ~~make a distribution in~~ subdivide the outstanding shares of ~~Class A common stock to holders~~ Common Stock into a larger number of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~shares of Common Stock, (iii) ~~subdivide its~~ combine the outstanding shares of ~~Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock~~ Common Stock into a smaller number of shares of ~~Class A common stock~~Common Stock, (iv) issue any equity interest in a reclassification of the shares of Common Stock or (v) pay a dividend or make a distribution on the outstanding shares of Common Stock in shares of Common Stock or other equity interests pursuant to a rights plan, "poison pill" or similar arrangement, then, and in each such case, the Conversion Price in effect immediately prior to such ~~action~~ event shall be adjusted (and any other appropriate actions shall be taken by the Company) so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock or other securities of the Company that such holder would have owned ~~immediately following such action~~ or would have been entitled to receive upon or by reason of any of the events described above, had ~~the~~ this Note been converted immediately prior ~~thereto~~to the occurrence of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection (a~~Section 7.4(a) shall become effective ~~immediately after the record date~~ retroactively (i) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution ~~and shall become effective immediately after the effective date~~ or (ii) in the case of ~~a subdivision~~ any such subdivision, combination or ~~combination~~reclassification, to the close of business on the day upon which such corporate action becomes effective. (b) In case the Company shall at any time or from time to time issue ~~rights, options~~ or ~~warrants to all holders of Class A common stock entitling them to subscribe for or purchase~~ sell shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for shares of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock) (other than (i) options to acquire shares of Common Stock granted on or prior to January 14, 1998 to any officer, director, employee or consultant of the Company or any Subsidiary of the Company or (ii) up to 100,000 shares of Common Stock (subject to adjustment) issued upon the exercise of those certain Stock Purchase Warrants issued by the Company to X.X. Xxxxxxx Associates, Inc. on July 7, 1994), at a price per share ~~(or having a conversion price per share)~~ less than either the Current Market Price per share ~~(as determined pursuant to subsection (f) below) of~~ or the ~~Class A common stock on~~ Conversion Price per share then in effect at the record date ~~for determining~~ referred to in the ~~holders~~ following sentence (treating (A) the price per share of any security convertible or exchangeable or exercisable into shares of Common Stock as equal to (i) the sum of the ~~Class A common stock entitled~~ price for such security convertible, exchangeable or exercisable into shares of Common Stock plus any additional consideration payable (without regard to ~~receive~~ any anti-dilution adjustments) upon the conversion, exchange or exercise of such ~~rights~~security into shares of Common Stock divided by (ii) the number of shares of Common Stock initially underlying such convertible, ~~options~~ exchangeable or ~~warrants~~exercisable security and (B) the price per share of any security issued in connection with the settlement or compromise any claim, action, suit, proceeding or dispute or in connection with the satisfaction of any judgment relating to the foregoing as equal to $.01), then, and in each such case, the Conversion Price then in effect shall be adjusted ~~so that the same shall equal the price determined~~ by ~~multiplying~~ dividing the Conversion Price in effect on the day immediately prior to such record date by a fraction (x) the numerator of which ~~the numerator~~ shall be the sum of the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so offered for subscription~~ Common Stock issued or ~~purchase~~ to be issued (or the maximum number into which such convertible or exchangeable securities initially may convert or exchange or for which such options, warrants or other rights initially may be exercised) and (y) the ~~convertible securities so offered are convertible). Such adjustments~~ denominator of which shall ~~become effective immediately after such record date. For~~ be the ~~purposes~~ sum of ~~this subsection (b),~~ the number of shares of ~~Class A common stock at any time~~ Common Stock outstanding ~~shall not include shares held in~~ on such record date plus the ~~treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions~~ number of shares of Common Stock that the aggregate consideration for the total number of such ~~Class A common stock~~additional shares of Common Stock so issued (or into which such convertible or exchangeable securities may convert or exchange or for which such options, warrants or other rights may be exercised, plus the aggregate amount of any additional consideration initially payable upon conversion, exchange or exercise of such security) would purchase at the greater of the Current Market Price per share or the Conversion Price per share on such record date. ~~The Company~~ Such adjustment shall ~~not issue any rights~~be made whenever such shares of Common Stock, ~~options~~ securities, options, warrants or ~~warrants in respect~~ other rights are issued, and shall become effective retroactively to a date immediately following the close of business on the record date for the determination of holders of shares of ~~Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders~~ Common Stock entitled to ~~subscribe for or purchase~~ receive such shares of ~~Class A common stock at less than~~ Common Stock, securities, options, warrants or other rights; provided, however, that the ~~Current Market Price, and in determining~~ determination as to whether an adjustment is required to be made pursuant to this Section 7.4(b) shall only be made upon the ~~aggregate offering price~~ issuance of such shares of ~~Class A common stock~~Common Stock or such convertible or exchangeable securities, options, warrants or other rights, and not upon the issuance of the security into which such convertible or exchangeable security converts or exchanges, or the security underlying such option, warrants or other right; provided further, that if any convertible or exchangeable securities, options, warrants or other rights (or any portions thereof) that shall have given rise to an adjustment pursuant to this Section 7.4(b) shall have expired or terminated without the exercise thereof and/or if by reason of the terms of such convertible or exchangeable securities, options, warrants or other rights there shall have been an increase or increases, with the passage of time or otherwise, in the price payable upon the exercise or conversion thereof, then the Conversion Price hereunder shall be ~~taken into account~~ readjusted (but to no greater extent than originally adjusted with respect to the related event) on the basis of (x) eliminating from the computation any ~~consideration received by Company for~~ additional shares of Common Stock corresponding to such ~~rights~~convertible or exchangeable securities, ~~warrants, or~~ options, warrants or other rights as shall have expired or terminated, (y) treating the ~~value~~ additional shares of ~~such consideration~~Common Stock, if any, actually issued or issuable pursuant to the previous exercise of such convertible or exchangeable securities, options, warrants or other ~~than cash~~rights as having been issued for the consideration actually received and receivable therefor and (z) treating any of such convertible or exchangeable securities, options, warrants or other rights that remain outstanding as being subject to exercise or conversion on the basis of such exercise or conversion price as shall be ~~determined by~~ in effect at the ~~Board of Directors~~time. (c) In case the Company shall at any time or from time to time distribute on or with respect to ~~all holders of Class A common stock~~ the shares of ~~capital stock~~ Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the resulting or surviving corporation and the shares of ~~Company (other than Class A common stock)~~Common Stock are not changed or exchanged) cash, evidences of ~~indebtedness~~indebtedness of the Company or another issuer, ~~cash, rights, options~~ securities of the Company or ~~warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above)~~ another issuer or other assets (~~including securities of Persons other than Company but~~ excluding (i) ~~dividends or distributions paid exclusively in cash except as described in subsection (d) below~~Regular Distributions, (ii) dividends and distributions ~~described~~ paid or made to the holder of this Note in ~~subsection (a) above~~ the manner provided in Section 4 and (iii) ~~distributions~~ dividends payable in ~~connection with~~ shares of Common Stock for which adjustment is made under Section 7.4(a)) or rights or warrants to subscribe for or purchase securities of the ~~consolidation~~Company (excluding those referred to in Section 7.4(b)) then, ~~merger or transfer of assets covered by Section 9.11), then~~ and in each such ~~case~~ case, the Conversion Price then in effect shall be adjusted ~~so that the same shall equal the price determined~~ by ~~multiplying~~ dividing the Conversion Price in effect immediately prior to the date of such distribution by a fraction (x) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~(determined as provided in subsection (f) below)~~ of the ~~Class A common stock~~ shares of Common Stock on the record date ~~mentioned~~ referred to below ~~less~~ and (y) the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and denominator of which ~~the denominator~~ shall be such Current Market Price of the ~~Class A common stock~~shares of Common Stock less the amount that a willing buyer would pay a willing seller in an arm's-length transaction at such time (as determined in good faith by the Board of Directors of the Company) for the portion of the cash, evidences of indebtedness, securities or other assets so distributed or of such subscription rights or warrants applicable to one Unit (but such denominator not to be less than one); provided, however, that no adjustment shall be made with respect to any distribution of rights to purchase securities of the Company if the holder of this Note would otherwise be entitled to receive such rights upon conversion at any time of this Note into shares of Common Stock unless such rights are subsequently redeemed by the Company, in which case such redemption shall be treated for purposes of this Section 7.4(c) as a distribution on the shares of Common Stock. Such adjustment shall be made whenever any such distribution is made; provided, however, that in the case of a Cash Distribution (as defined in Section 7.4(f)) such adjustment shall be calculated not later than 45 days following the last day of the Calculation Period (as defined in Section 7.4(f)). The adjustment shall become effective retroactively to a date immediately ~~after~~ following the close of business on the record date for the determination of ~~the~~ holders of ~~Class A common stock~~ shares of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case the Company ~~shall, by dividend or otherwise,~~ at any time ~~make a distribution~~ or from time to ~~all holders~~ time shall take any action affecting the shares of Common Stock or its ~~Class A common stock exclusively~~ other equity interests, if any, other than an action described in ~~cash (including~~ any ~~distributions~~ of ~~cash out of current~~ Section 7.4(a) through Section 7.4(c), inclusive, or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount thatSection 7.8, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") then, and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)each such case, the Conversion Price shall be ~~reduced so that~~ adjusted in such manner and at such time as the ~~same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness~~ Board of Directors of the ~~Conversion Price reduction contemplated by this subsection~~ Company in good faith determines to be equitable in the circumstances (~~d) by~~ such determination to be evidenced in a ~~fraction~~ resolution, a certified copy of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be ~~determined by dividing~~ mailed to the ~~sum~~ holders of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateNotes). (e) ~~In case a tender offer~~ Notwithstanding anything herein to the contrary, no adjustment under this Section 7.4 need be made to the Conversion Price unless such adjustment would require an increase or ~~other negotiated transaction made by Company or any Subsidiary~~ decrease of ~~Company for all or any portion~~ at least 1% of the ~~Class A common stock~~ Conversion Price then in effect. Any lesser adjustment shall be ~~consummated~~carried forward and shall be made at the time of and together with the next subsequent adjustment, ~~if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment~~which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such Conversion Price. Any adjustment to the ~~sum~~ Conversion Price carried forward and not theretofore made shall be made immediately prior to the conversion of this Note pursuant hereto. (xf) For purposes of Section 7.4(c), a "Regular Distribution" shall mean a distribution of cash or cash equivalents on or with respect to the ~~aggregate~~ Common Stock (a "Cash Distribution") in an amount that, when added to the amount of ~~any distributions, by dividend or otherwise, to~~ all ~~holders~~ other Cash Distributions made during the 12-month period ending on the last day of the ~~Class A common stock~~ fiscal quarter of the Company in which such Cash Distribution is made (or, if this Note has been outstanding for a period shorter than 12 months, the period from the first day of the fiscal quarter in ~~cash~~ which this Note was issued to the last day of such fiscal quarter) (~~including any distributions of cash out of current or retained earnings of Company) within~~ the ~~12 months~~ "Calculation Period"), does not exceed, on the Business Day immediately preceding the date of ~~payment of~~ such ~~current negotiated transaction consideration or expiration of such current tender offer~~distribution, ~~as the case may be~~ either (~~the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c~~i) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/21% ~~of the product~~ of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock~~ Common Stock or (ii) 12.5% of the net income of the Company (calculated in accordance with generally accepted accounting principles consistently applied) for the 12-month period ending on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness last day of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) immediately preceding fiscal quarter of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateCompany.

Appears in 1 contract

Samples: Note Purchase Agreement (Wellcare Management Group Inc)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time by the Company as follows; provided that the Company shall not make any adjustments to the Conversion Price if Holders (as a result of holding the Securities, and at the same time as common stockholders participate) in any of the transactions described below as if such Holders held a number of shares of Common Stock equal to the, the principal amount of Securities held by such Holders divided by the then-applicable Conversion Price, without having to convert their Securities: (a) In case the Company shall ~~(i) pay~~ issue shares of Common Stock as a dividend in or distribution on shares of ~~Class A common stock to holders of Class A common stock (~~the Common Stock, or ~~any event treated as such for U.S. Federal income tax purposes), (ii) make~~ the Company shall effect a ~~distribution in shares of Class A common stock to holders of Class A common stock (~~share split or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stockshare combination, the Conversion Price ~~in effect immediately prior to such action~~ shall be ~~adjusted so that~~ multiplied by the ~~holder of this Note thereafter surrendered for conversion shall be entitled to receive~~ following fraction: OS0/OS' where, OS0 = the number of shares of ~~Class A common stock which he would have owned immediately following such action had the Note been converted~~ Common Stock that will be outstanding immediately prior ~~thereto~~to the close of business on the record date for such dividend or distribution as of the effective date of such share split or combination, as the case may be; and OS' = the number of shares of Common Stock outstanding as of the record date for such dividend or distribution and immediately after giving effect to such dividend or distribution or immediately after the effective date of such share split or combination, as the case may be. Any adjustment made pursuant to this subsection (a) shall become effective on the date that is immediately after (x) the record date in for such dividend or other distribution, or (y) the ~~case of a~~ date on which such split or combination becomes effective, as applicable. If any dividend or distribution ~~and~~ of the type described in this Section 12.04(a) is declared but not paid or made, the Conversion Price shall ~~become~~ be readjusted, effective ~~immediately after~~ as of the ~~effective~~ date in the Board of Directors determines not to pay such dividend or distribution, or split or combine the outstanding shares of Common Stock, as the case ~~of a subdivision or combination~~may be, to the Conversion Price that would then be in effect if such dividend, distribution had not been declared. (b) In case the Company shall ~~issue rights, options~~ distribute to all or ~~warrants to~~ substantially all holders of ~~Class A common stock~~ Common Stock any rights or warrants (other than, as described below, rights distributed pursuant to a shareholder rights plan) entitling them for a period of not more than 45 days after the date of such distribution to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price per share (as determined pursuant to subsection (f) below)~~ average of Last Reported Sale Prices of the ~~Class A common stock~~ Common Stock on the ~~record date for determining~~ ten Trading Days immediately preceding the ~~holders~~ time of ~~the Class A common stock entitled to receive~~ announcement of such ~~rights, options or warrants~~distribution, the Conversion Price shall be ~~adjusted so that~~ multiplied by the ~~same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be~~ following fraction: (OS0 + Y) / (OS0 + X) where, OS0 = the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of~~ immediately prior to the close of business on ~~such~~ the record date ~~plus the number of shares of Class A common stock which the aggregate offering price of~~ for such distribution; X = the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined Common Stock issuable pursuant to ~~subsection (f) below),~~ such rights or warrants; and ~~of which the denominator shall be~~ Y = the number of shares of ~~Class A common stock outstanding~~ Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of public announcement for the issuance of such ~~record date plus the number of additional shares of Class A common stock so offered for subscription~~ rights or ~~purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date~~warrants. For ~~the~~ purposes of this subsection (b), ~~the number of shares of Class A common stock at any time outstanding shall not include shares held~~ in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any ~~rights, options~~ rights or warrants entitle the holders to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock at less than such average of the ~~Current Market Price~~Last Reported Sale Prices of the Common Stock, and in determining the aggregate ~~offering~~ exercise or conversion price of such shares of ~~Class A common stock~~Common Stock, there shall be taken into account any consideration received by the Company for such ~~rights, warrants,~~ rights or ~~options~~warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if ~~any,~~ other than cash, to be determined by the Board of Directors. If any right or warrant described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Price shall be readjusted to the Conversion Price that would have been in effect if our right or warrant had not been issued. (c) In case the Company shall distribute shares of any class of Capital Stock of the Company, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of ~~Class A common stock shares of capital stock of Company~~ Common Stock (~~other than Class A common stock), evidences of indebtedness, cash, rights, options~~ but excluding dividends or ~~warrants entitling the holders thereof~~ distributions referred to ~~subscribe for or purchase securities (other than rights, options or warrants described~~ in subsection (a) or (b) ~~above) or other assets (including securities~~ of ~~Persons other than Company but excluding (i)~~ this Section 12.04, dividends or distributions paid exclusively in cash ~~except as described~~ referred to in subsection (d) ~~below~~of this Section 12.04, ~~(ii) dividends~~ and distributions described below in this subsection (ac) ~~above and~~ with respect to Spin-Offs) (~~iii~~any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this subsection (c) ~~distributions in connection with~~ called the ~~consolidation, merger or transfer of assets covered by Section 9.11~~“Distributed Property”), ~~then~~ then, in each such case the Conversion Price shall be ~~adjusted so that~~ multiplied by the ~~same shall equal~~ following fraction: (SP0 – FMV) / SP0 where, SP0 = the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) average of the ~~Class A common stock~~ Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on the ~~record date mentioned below less~~ Trading Day immediately preceding the Ex-Date for such distribution; and FMV = the fair market value of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such ~~record date (~~distribution, as determined by the Board of Directors. With respect to an adjustment pursuant to this subsection (c) where there has been a payment of a dividend or other distribution to the holders of the Common Stock in shares of Capital Stock of any class or series, ~~whose determination~~ or similar equity interest, of or relating to a Subsidiary or other Company business unit (a “Spin-Off”), the Conversion Price in effect immediately before 5:00 p.m., New York City time, on the 10th Trading Day immediately following, and including, the effective date of the Spin-Off shall be ~~conclusive evidence of such fair market value and described in a board resolution~~multiplied by the following fraction: MP0 / (FMV0 + MP0) where, FMV0 = the average of the ~~portion~~ Last Reported Sale Prices of the ~~evidences~~ Capital Stock or similar equity interest distributed to holders of ~~indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed~~ Common Stock applicable to one share of ~~Class A common stock (determined~~ Common Stock over the first 10 consecutive Trading Day period immediately following the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first 10 consecutive Trading Day period immediately following the effective date of the Spin-Off. Such adjustment shall occur on the ~~basis~~ 10th Trading Day from the effective date of the Spin-Off; provided that in respect of any conversion within the 10 Trading Days immediately following, and including, the effective date of any Spin-Off, references in this subsection (c) with respect to the Spin-Off to 10 Trading Days shall be deemed replaced with such lesser number of ~~shares~~ Trading Days as have elapsed between the effective date of such Spin-Off and the ~~Class A common stock outstanding on~~ Conversion Date in determining the ~~record date)~~applicable Conversion Price. If any such dividend or distribution described in this subsection (c) is declared but not paid or made, ~~and of which~~ the ~~denominator~~ Conversion Price shall be readjusted to be the Conversion Price that would then be in effect if such ~~Current Market~~ dividend or distribution had not been declared. (d) In case the Company shall pay any cash dividends or distributions to all or substantially all holders of its Common Stock, the Conversion Price shall be multiplied by the following fraction: (SP0 – C) / SP0 where, SP0 = the Last Reported Sale Price of the ~~Class A common stock~~Common Stock on the Trading Day immediately preceding the Ex-Date for such distribution; C = the amount in cash per share the Company distributes to holders of Common Stock in such distribution. Such adjustment shall become effective immediately after the ~~record date for the determination~~ opening of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after business on the record date for such dividend or distribution. If any such dividend or distribution ~~and prior to~~ is not so paid or made, the ~~expiration or redemption of the Rights~~ Conversion Price shall again be ~~entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights~~ adjusted to be ~~determined as follows: (i)~~ the Conversion Price that would then be in effect if such ~~conversion occurs on~~ dividend or ~~prior to the date for the~~ distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have had not been ~~entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights~~declared. (de) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries ~~for Class A common stock concluded within the 12 months preceding the Distribution Record Date and~~ make a payment in respect of a tender offer or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which ~~no Conversion Price adjustment~~ tenders or exchanges may be made pursuant to ~~subsections~~ such tender or exchange offer (~~c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined~~ as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Companyit may be amended), the Conversion Price shall be ~~reduced so that~~ multiplied by the ~~same shall equal~~ following fraction: (OS0 x SP') / (AC + (SP' x OS')) where, AC = the ~~price~~ aggregate value of all cash and any other consideration as determined by ~~multiplying such Conversion Price in effect immediately prior to~~ the ~~effectiveness~~ Board of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, Directors paid or payable ~~within~~ for shares purchased in such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid tender or ~~payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by~~ exchange offer; OS0 = the number of shares of ~~Class A common stock~~ Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of date such tender or exchange offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by expires; OS' = the number of shares of ~~Class A common stock~~ Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to such tender offer or exchange offer); and SP' = the Last Reported Sale Price of Common Stock on the ~~Purchase Date~~ Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment shall become effective immediately after close of business on the Trading Day next succeeding the date such tender or exchange offer expires. (~~including any tendered shares but excluding any shares held in the treasury of Company),~~ f) No adjustment to the Conversion Price shall be ~~reduced so that~~ made if the ~~same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness~~ application of any of the formulas set forth in this Section 12.04 (other than in connection with a share combination) would result in an increase in the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DatePrice.

Appears in 1 contract

Samples: Indenture (E Trade Financial Corp)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i) pay a dividend in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii) make a distribution in shares of ~~Class A common stock~~ Common Stock to holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (iii) subdivide or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares of ~~Class A common stock~~ Common Stock or (iv) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares of ~~Class A common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he would have owned immediately following such action had ~~the Note~~ such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to substantially all holders of ~~Class A common stock~~ Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price ~~per share (as determined pursuant to subsection (f) below) of the Class A common stock~~ on ~~the~~ such record ~~date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (i) the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record date plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of ~~Class A common~~ Common stock ~~so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market ~~Price (as determined pursuant to subsection (f) below)~~Price, and ~~of which~~ (ii) the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered ~~for subscription or purchase~~ (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall distribute to substantially all holders of ~~Class A common stock~~ Common Stock shares of ~~capital stock~~ any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than ~~Class A common stock~~cash dividends), ~~evidences~~ or shall distribute to substantially all holders of ~~indebtedness, cash, rights, options~~ Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those securities referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which (i) the numerator shall be the Current Market Price ~~(determined as provided in subsection (f) below) of the Class A common stock~~ on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a ~~board resolution~~Board Resolution) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and ~~of which~~ (ii) the denominator shall be such Current Market ~~Price of the Class A common stock~~Price. Such adjustment shall become effective immediately after the record date for the determination of the holders of ~~Class A common stock~~ Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in ~~case~~ the event that the Company shall distribute ~~rights, options~~ rights or warrants to subscribe for ~~additional shares of Company's capital stock~~ securities (other than ~~rights, options~~ the rights or warrants referred to in subsection (b) above) ("Rights") pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, the Company may, in lieu of making any adjustment pursuant to ~~the foregoing provisions of~~ this ~~subsection (c) of~~ Section ~~9.6~~ 5.06, make proper provision so that ~~the~~ each holder of ~~the Note~~ a Security who converts ~~the Note~~ such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of the ~~Note~~ Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case the Company shall, by dividend or otherwise, at any time ~~make a distribution~~ distribute to substantially all holders of its ~~Class A common stock exclusively in~~ Common Stock cash (~~including any distributions of cash out of current or retained earnings of Company but~~ excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to ~~subsection~~ paragraph (c) of this Section) in an -22- aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions ~~made exclusively in cash~~ to all holders of ~~Class A common stock~~ its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to ~~subsection~~ paragraphs (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection paragraph (d) has been made, exceeds ~~12 1/2~~5% of the product of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date ~~multiplied by~~ times the number of shares of ~~Class A common stock~~ Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (d) by a fraction of which (i) the numerator shall be the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date less the ~~sum~~ amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Distribution Record ~~Date~~Date of Common Stock and (ii) ~~and~~ the denominator shall be such Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the ~~Class A common stock~~ Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the ~~aggregate~~ amount of such Excess Payment, together with the sum of (x) the aggregate amount of ~~any distributions, by dividend or otherwise,~~ all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the ~~Class A common stock~~ Common Stock made in ~~cash (including any distributions of cash out of current or retained earnings of Company)~~ cash, in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment ~~in the Conversion Price~~ pursuant to ~~subsection~~ paragraph (c) or paragraph (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection paragraph (e) has been made, exceeds ~~12 1/2~~5% of the product of the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date ~~multiplied by~~ times the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~on the Purchase Date~~ (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this ~~subsection~~ paragraph (e) by a fraction of which (i) the numerator shall be the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date less the ~~sum~~ amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of ~~cash and the aggregate~~ such Excess Payments ~~so distributed~~and such cash distributions, ~~paid or payable within such 12 month period (including, without limitation,~~ divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of ~~Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock~~ Common Stock outstanding on the Purchase Date) of Common Stock and (ii) the denominator shall be ~~such~~ the Current Market Price ~~per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date. (f) In case the Company shall issue Common Stock or securities convertible into, or exchangeable for, Common Stock at a price per share (or having a conversion or exchange price per share) that is less than the Current Market Price (but excluding, among other things, issuances: (1) pursuant to any bona fide plan for the benefit of employees, directors or consultants of the Company now or hereafter in effect; (2) to acquire all or any portion of a business in an arm's-length transaction between the Company and an unaffiliated third party including, if applicable, issuances upon exercise of options or warrants assumed in connection with such transaction; (3) in a bona fide public offering pursuant to a firm commitment underwriting or sales at the market pursuant to a continuous offering stock program; (4) pursuant to the exercise of warrants, rights (including, without limitation, earnout rights) or options, or upon the conversion of convertible securities, which are issued and outstanding on the date hereof, or which may be issued in the future for fair value and with an exercise price or conversion price at least equal to the Current Market Price at the time of such issuance), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price by a fraction of which (i) the numerator shall be (A) the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus a number determined by (B) multiplying the number of additional shares of Common Stock offered or issuable upon conversion or exchange times the offering, conversion or exchange price per share of additional shares and dividing the product thereof by the Current Market Price on the record date or issuance date, as applicable, and (ii) the denominator shall be the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus the number of additional shares of Common Stock offered or issuable upon conversion or exchange. Such adjustment shall be made whenever any such securities are issued and shall become effective on the date of such issuance. (g) The Current Market Price per share of Common Stock on any date (the "Current Market Price") shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination. (h) In any case in which this Section 5.06 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.

Appears in 1 contract

Samples: Indenture (Swift Energy Co)

Appears in 1 contract

Samples: Note Exchange Agreement (Mail Com Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i1) pay a dividend in shares of ~~Class A common stock~~ Common Stock to all holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii2) make a distribution in shares of ~~Class A common stock~~ Common Stock to all holders of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~iii~~3) subdivide ~~its~~ the outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares of ~~Class A common stock~~ Common Stock or (iv4) combine ~~its~~ the outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares of ~~Class A common stock~~Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock~~ Common Stock which he such Holder would have owned immediately following such action had ~~the Note~~ such Securities been converted immediately prior thereto. Any adjustment made pursuant to this ~~subsection (a~~SECTION 10.7(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ Common Stock, entitling ~~them~~ them, for a period expiring not more than sixty (60) days immediately following the record date for the determination of holders of Common Stock entitled to receive such rights or warrants, to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock)~~ or exchangeable or exercisable for Common Stock), at a price per share (or having a ~~conversion~~ conversion, exchange or exercise price per share) that is less than the ~~Current Market Price per share~~ current market price (as determined pursuant to ~~subsection (f) below~~SECTION 10.7(e)) of ~~the Class A common stock~~ Common Stock on the record date for ~~determining~~ the determination of holders of ~~the Class A common stock~~ Common Stock entitled to receive such ~~rights, options~~ rights or warrants, the Conversion Price shall be ~~adjusted so that the same shall equal the price determined~~ increased by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (A) the numerator shall be the sum of (I) the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of~~ at the close of business on such record date ~~plus~~ and (II) the number of shares of ~~Class A common stock~~ Common Stock which the aggregate ~~offering~~ exercise, conversion, exchange or other price of at which the ~~total number of shares of Class A common stock so offered~~ Underlying Shares (as defined below) may be subscribed for or purchased pursuant to ~~the holders of outstanding Class A common stock) for subscription~~ such rights or ~~purchase (or the aggregate conversion price of the convertible securities so offered)~~ warrants would purchase at such ~~Current Market Price~~ current market price and (~~as determined pursuant to subsection (f~~B) ~~below), and of which~~ the denominator shall be the sum of (I) number of shares of ~~Class A common stock~~ Common Stock outstanding at the close of business on such record date ~~plus~~ and (II) the aggregate number of ~~additional~~ shares (the "UNDERLYING SHARES") of ~~Class A common stock so offered for subscription~~ Common Stock underlying all such issued rights or ~~purchase~~ warrants (whether by exercise, conversion, exchange or ~~into which the convertible securities so offered are convertible~~otherwise). Such ~~adjustments~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following such record date. ~~For~~ In no event shall the ~~purposes of~~ Conversion Price be increased pursuant to this ~~subsection (b~~SECTION 10.7(b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case the Company shall dividend or distribute to all holders of ~~Class A common stock~~ Common Stock shares of ~~capital stock~~ Capital Stock of the Company (other than ~~Class A common stock~~Common Stock), evidences of ~~indebtedness~~Indebtedness or other assets, ~~cash, rights, options~~ or shall dividend or distribute to all holders of Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase securities (other than ~~rights~~those referred to in SECTION 10.7(b)), ~~options or warrants described in subsection~~ if these distributions, aggregated on a rolling twelve (b12) ~~above~~month basis, have a per share value exceeding fifteen percent (15%) ~~or other assets (including securities~~ of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the ~~consolidation, merger or transfer~~ market price of ~~assets covered by Section 9.11)~~the Company's common stock on the Trading Day immediately preceding the declaration of the distribution, then in each such case the Conversion Price shall be ~~adjusted so that the same shall equal the price determined~~ decreased by multiplying the Conversion Price in effect immediately prior to the close of business on the record date for the determination of shareholders entitled to such dividend or distribution by a fraction of which (A) the numerator shall be the ~~Current Market Price~~ current market price of Common Stock (as determined ~~as provided in subsection (f~~pursuant to SECTION 10.7(e)) ~~below) of the Class A common stock~~ on ~~the~~ such record date ~~mentioned below less~~ and (B) the denominator shall be an amount equal to (I) such current market price plus (II) the fair market value ~~on such record date~~ (as determined in good faith by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and described in a ~~board resolution)~~ Board Resolution), on such record date, of the portion of the shares of Capital Stock, evidences of ~~indebtedness~~Indebtedness, ~~shares of capital stock~~assets, ~~cash, rights, options,~~ rights and warrants to be dividended or ~~other assets so~~ distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record DateCommon Stock, such ~~reduction~~ increase to become effective immediately prior to the opening of business on the day following such record date; provided, however, that if such denominator is equal to or less than one, then, in lieu of the ~~Distribution Record Date~~foregoing adjustment to the Conversion Price, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of its Securities, in addition to the shares of Common Stock issuable (and cash, if any, payable) upon such conversion, an amount of shares of Capital Stock, evidences of Indebtedness, assets, rights and/or warrants that such Holder would have received had such Holder converted all of its Securities on such record date. (d) In addition to the foregoing adjustments in SUBSECTIONS (a), (b) and (c) above, the Company, from time to time and to the extent permitted by law, may decrease the Conversion Price by any amount for a period of at least twenty (20) days or such longer period as may be required by law, if the Board of Directors has made a determination, which determination shall be conclusive, that such decrease would be in the best interests of the Company. Such Conversion Price increase shall be irrevocable during such period. The Company shall give notice to the Trustee and cause notice of such decrease to be mailed to each Holder of Securities at such Holder's address as the same appears on the registry books of the Registrar, at least fifteen (15) days prior to the date on which such decrease commences. (e) ~~In case a tender offer~~ For the purpose of any computation under SUBSECTIONS (a), (b) or ~~other negotiated transaction made by Company or any Subsidiary~~ (c) above of ~~Company~~ this SECTION 10.7, the current market price per share of Common Stock on the date fixed for ~~all or any portion~~ determination of the ~~Class A common stock shall be consummated, if an Excess Payment is made in respect of~~ shareholders entitled to receive the issuance or distribution requiring such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be computation (the "~~Purchase~~ DETERMINATION DATE") shall be deemed to be the average of the Closing Sale Prices for the ten (10) consecutive Trading Days immediately preceding the Determination Date; provided, however, that (i) if the "~~), and as~~ ex" date for any event (other than the event requiring such computation) that requires an adjustment to ~~which no adjustment in~~ the Conversion Price pursuant to ~~subsection~~ SUBSECTION (a), (b), or (c), above occurs on or after the tenth (10th) Trading Day prior to the Determination Date, and prior to the "ex" date for the issuance or distribution requiring such computation, the Closing Sale Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event, (dii) ~~of this Section or this subsection~~ if the "ex" date for any event (eother than the event requiring such computation) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no that requires an adjustment in to the Conversion Price pursuant to ~~subsection~~ SUBSECTION (a), (b), or (c), above occurs on or after the "ex" date for the issuance or distribution requiring such computation and on or prior to the Determination Date, the Closing Sale Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Price is so required to be adjusted as a result of such other event, and (f) if the "ex" date for the event requiring such computation is on or prior to the Determination Date, after taking into account any adjustment required pursuant to CLAUSE (di) OR (ii) of this ~~Section or~~ proviso, the Closing Sale Price for each Trading Day on and after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for the purposes of this ~~subsection (e) has been made~~SECTION 10.7, ~~exceeds 12 1/2%~~ whose determination shall be conclusive and described in a Resolution of the ~~product~~ Board of ~~the Current Market Price per share (determined as provided in subsection (f) of this Section~~Directors) of the ~~Class A common stock on the Purchase Date multiplied by the number~~ evidences of Indebtedness, shares of ~~Class A common stock outstanding on the Purchase Date~~ Capital Stock or other securities or assets or cash being distributed (~~including any tendered shares but excluding any shares held~~ in the ~~treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying~~ event requiring such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being madecomputation) applicable to one share of ~~Class A common stock (which shall be determined by dividing the sum~~ Common Stock as of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening close of business on the day ~~following~~ before such "ex" date. For purposes of this subsection, the ~~Purchase Date~~term "ex" date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades the regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender offer or exchange offer means the first date on which the Common Stock trades the regular way on such exchange or in such market after the expiration time of such tender offer or exchange offer (as it may be amended or extended).

Appears in 1 contract

Samples: Indenture (Terremark Worldwide Inc)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case ~~Company~~ the Issuer shall (i1) make or pay a dividend (or other distribution) in shares of ~~Class A common stock to holders~~ Common Stock on any class of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Capital Stock of the Issuer, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which~~ Common Stock that he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (i) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case ~~Company~~ the Issuer shall issue rights, options or warrants to all or substantially all holders of ~~Class A common stock~~ Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) ~~of the Class A common stock~~ on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (i) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, of ~~which~~ which (ii) the numerator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of ~~which~~ which (iii) the denominator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of ~~Class A common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)i) below, after the ~~number~~ record date for the determination of ~~shares of Class A common stock at~~ holders entitled to receive such rights, options or warrants; provided, however, that if any ~~time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of~~ such ~~Class A common stock. The Company shall not issue any~~ rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the ~~Board~~ Issuer as described in this subsection (b) are only exercisable upon the occurrence of ~~Directors~~certain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur. (c) In case ~~Company~~ the Issuer or any Subsidiary of the Issuer shall distribute to all or substantially holders of ~~Class A common stock shares~~ Common Stock, any of ~~capital stock of Company (other than Class A common stock)~~its assets, evidences of indebtedness, ~~cash, rights, options~~ cash or ~~warrants entitling the holders thereof to subscribe for~~ other assets or ~~purchase securities (~~shares of Capital Stock other than ~~rights~~Common Stock (including securities, ~~options~~ but other than (x) dividends or ~~warrants described~~ distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market~~ then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Issuer) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (i) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (d) In case the Issuer or any Subsidiary of the Issuer shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 14.6 applies) to all or substantially all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender or exchange offer by the Issuer or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Issuer's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (e) In case there shall be completed a tender or exchange offer made by the Issuer or any Subsidiary of the Issuer for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 14.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the ~~Class A common stock~~ Common Stock on the ~~record date mentioned below less~~ Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such ~~record date~~ current market price per share on the Expiration Time times (as ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of ~~Directors, whose determination shall be conclusive evidence~~ Directors of ~~such fair market value~~ the Issuer and described in a ~~board resolution~~Board Resolution. (f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the ~~portion~~ Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Issuer commencing not more than 20 Trading Days before, and ending not later than, the earlier of the ~~evidences~~ date in question and the date before the " 'ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of ~~indebtedness~~Last Sale Price in Section 14.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Issuer, shall be used. For purposes of this paragraph, the term " 'ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer. (g) In addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Issuer will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of ~~capital stock~~Common Stock. (h) In the event the Issuer elects to make such a reduction in the Conversion Price, ~~cash~~the Issuer will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price of the Notes; provided that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws. (i) In any case in which this Section 14.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, ~~rights~~the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), ~~options~~in which case the Issuer shall, ~~warrants~~ with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 14.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Issuer (or other assets ~~so distributed applicable to one share of Class A common stock (determined on the basis~~ or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the ~~Class A common stock outstanding~~ Issuer issuable thereupon only on the ~~record date)~~basis of the Conversion Price prior to adjustment, and ~~of which the denominator shall be~~ (ii) not later than five Business Days after such ~~Current Market Price of the Class A common stock. Such~~ adjustment shall have become ~~effective immediately after~~ effective, pay to such Holder the ~~record date for~~ appropriate Cash payment pursuant to Section 14.3 hereof and issue to such Holder the ~~determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for~~ additional shares of ~~Company's capital stock~~ Common Stock and other Capital Stock of the Issuer (or other assets or securities) issuable on such conversion. (j) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this subsection (j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Issuer. (k) In the event that the Issuer distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 14.5 to the extent this paragraph (k) applies thereto) or warrants (other than ~~rights, options or warrants~~ those referred to in subsection (b) above) ~~("Rights")~~ pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, ~~Company may~~so long as any such rights or warrants have not expired or been redeemed by the Issuer, ~~in lieu of making any adjustment pursuant to~~ the ~~foregoing provisions of this subsection (c) of Section 9.6~~ Issuer shall make proper provision so that the ~~holder~~ Holder of ~~the~~ any Note ~~who converts the Note (or any portion thereof) after the record date~~ surrendered for ~~such distribution and prior to the expiration or redemption of the Rights shall~~ conversion will be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of ~~Rights~~ rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of ~~Rights~~ rights or warrants of separate certificates evidencing such ~~Rights~~ rights or warrants (the "Distribution Date"), the same number of ~~Rights~~ rights or warrants to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the ~~Rights;~~ rights or warrants, and (ii) if such conversion occurs after ~~the~~ such Distribution Date, the same number of ~~Rights~~ rights or warrants to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of ~~the~~ such Note so converted was convertible immediately prior to ~~the~~ such Distribution Date would have been entitled on ~~the~~ such Distribution Date in accordance with the terms and provisions of and applicable to the ~~Rights~~rights or warrants. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 1 contract

Samples: Supplemental Indenture (Emcor Group Inc)

Adjustment of Conversion Price. The "Conversion ~~Price~~ Price" for a Series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section 2.1 by or pursuant to which the form and terms of the Securities of such Series were established, and shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i1) pay a dividend ~~in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes), (ii)~~ make a distribution in shares of Class A ~~common stock~~ Common Stock to holders of Class A ~~common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (~~iii~~2) subdivide its outstanding shares of Class A ~~common stock~~ Common Stock into a greater number of shares of Class A ~~common stock or~~ Common Stock, (iv3) combine its outstanding shares of Class A ~~common stock~~ Common Stock into a smaller number of shares of Class A ~~common stock~~Common Stock or (4) issue by reclassification of its Class A Common Stock any shares of Capital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A ~~common stock~~ Common Stock or other Capital Stock of the Company which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock (including shares of Class A Common Stock and other Capital Stock) of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Class A Common Stock and other Capital Stock. (b) In case the Company shall issue ~~rights, options~~ rights or warrants to all holders of Class A ~~common stock~~ Common Stock entitling them (for a period not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of Class A ~~common stock (~~Common Stock or ~~securities~~ Securities convertible into Class A ~~common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fd) below) of the Class A ~~common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (1) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date by~~ rights or warrants by (2) a ~~fraction~~ fraction, of which (i) the numerator shall be (A) the number of shares of Class A ~~common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A ~~common stock~~ Common Stock which the aggregate offering price of the total number of shares of Class A ~~common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase~~ Common Stock (or the aggregate conversion price of the convertible ~~securities~~ securities) so ~~offered)~~ offered for subscription or purchase would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which (ii) the denominator shall be (A) the number of shares of Class A ~~common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A ~~common stock so offered for subscription or purchase~~ Common Stock (or into which the convertible securities are convertible) which are so offered ~~are convertible)~~for subscription or purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)e) below, after the ~~number~~ record date for the determination of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of holders entitled to receive such ~~Class A common stock. The Company shall not issue any rights, options~~ rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants~~, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case the Company shall distribute to substantially all holders of Class A ~~common stock shares of capital stock of Company (other than Class A common stock)~~Common Stock, evidences of indebtedness, ~~cash~~equity securities (including equity interests in the Company's Subsidiaries) other than common stock, ~~rights~~or other assets (other than cash dividends paid out of surplus of the Company), ~~options~~ or shall distribute to substantially all holders of Class A Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in n subsection (fd) below) of the Class A ~~common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination ~~shall~~ shall, if made in good faith, be conclusive evidence of such fair market ~~value and described in a board resolution~~value) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of Class A ~~common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the Class A ~~common stock~~Common Stock. Such adjustment shall become effective ~~immediately~~ immediately, except as provided in subsection (e) below, after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution~~. Notwithstanding~~ . (d) For the ~~foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares~~ purpose of ~~Company's capital stock (other than rights, options or warrants referred to in subsection~~ any computation under subsections (b) and (c) above~~) ("Rights") to all holders~~ , the current market price per share of Class A ~~common stock~~Common Stock on any date shall be deemed to be the 73 average of the Last Sale Prices for the 30 consecutive Trading Days commencing 45 Trading Days before the date in question. (e) In any case in which this Section 12.4 shall require that an adjustment be made immediately following a record date, the Company ~~may~~may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in ~~lieu of making~~ which case the Company shall, with respect to any ~~adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof)~~ Security converted after ~~the~~ such record date ~~for~~ and before such ~~distribution and prior to the expiration or redemption of the Rights~~ adjustment shall ~~be entitled to receive upon such conversion~~have become effective, ~~in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows:~~ (i) ~~if such conversion occurs on~~ defer paying any cash payment pursuant to Section 12.3 or ~~prior~~ issuing to the ~~date for~~ Holder of such Security the ~~distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a~~ number of shares of Class A ~~common stock equal to~~ Common Stock and other Capital Stock of the ~~number of Conversion Shares is entitled at the time of~~ Company issuable upon such conversion in ~~accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder~~ excess of the number of shares of Class A ~~common stock into which the principal amount~~ Common Stock and other Capital Stock of the ~~Note so converted was convertible immediately~~ Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days after such adjustment shall have become effective, pay to such Holder the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in appropriate cash ~~(including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment~~ payment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled Section 12.3 and issue to such ~~distribution (~~Holder the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of additional shares of Class A ~~common stock outstanding~~ Common Stock and other Capital Stock of the Company issuable on ~~the Distribution Record Date~~ such conversion. (~~excluding shares held~~ f) No adjustment in ~~the treasury of Company),~~ the Conversion Price shall be ~~reduced so that the same shall equal the price determined by multiplying~~ required unless such ~~Conversion Price in effect immediately prior to the effectiveness~~ adjustment would require an increase or decrease of at least 1% of the Conversion ~~Price reduction contemplated~~ Price; provided that any adjustments which by reason of this ~~subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in~~ subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment and provided, further, that adjustment shall be required and made in accordance with the provisions of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period Article Twelve (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in other than this subsection (f)) not later than such time as may be required in order to preserve the tax-free nature of ~~this Section)~~ a distribution to the holders of ~~the~~ Securities or Class A ~~common stock on the Distribution Record Date, such reduction to become effective immediately prior~~ Common Stock. All calculations under this Article Twelve shall be made to the ~~opening~~ nearest cent or to the nearest one-hundredth of ~~business on the day following the Distribution Record Date. (e) In case~~ a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be. (g) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be (conclusive evidence of the ~~"Purchase Date")~~correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each Holder of Securities at his address as the same appears on either the registry books of the Company or in the filings described in Section 2.4. Anything in this Section 12.4 to ~~which no adjustment~~ the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion ~~Price pursuant~~ Price, in addition to ~~subsection (c) or (d) of~~ those required by this Section 12.4, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or ~~this subsection~~ warrants to purchase stock or securities, or distribution of other assets (eother than cash dividends) ~~has been~~ hereafter made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the ~~number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ Company to its stockholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.

Appears in 1 contract

Samples: Exhibit (Interface Inc)

Adjustment of Conversion Price. ~~The Conversion Price shall be subject to adjustment from time to time as follows:~~ (a) ~~In case~~ If the Company shall (i) pay a dividend or other distribution, in ~~shares~~ Common Stock, on any class of ~~Class A common stock to holders~~ Capital Stock of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~the Company, (ii) ~~make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii)~~ subdivide ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ by any means or (iviii) combine ~~its~~ the outstanding ~~shares of Class A common stock~~ Common Stock into a smaller number of shares ~~of Class A common stock~~by any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior ~~to such action~~ thereto shall be adjusted so that the ~~holder~~ Holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock that such Holder would have owned ~~immediately following~~ or have been entitled to receive upon the happening of such ~~action~~ event had ~~the~~ such Note been converted immediately prior ~~thereto~~to the relevant record date or, if there is no such record date, the effective date of such event. ~~Any~~ An adjustment made pursuant to this ~~subsection (a~~Section 10.4(a) shall become effective immediately after the record date in for the ~~case~~ determination of a stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date ~~in the case~~ of a such subdivision or combination, as the case may be. (b) ~~In case~~ If the Company shall (i) issue ~~rights, options~~ or ~~warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock~~ distribute (~~or securities convertible into Class A common stock)~~ at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share of such Capital Stock on the date of such issuance or distribution) Capital Stock generally to holders of Common Stock or to holders of any class or series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (~~as determined pursuant~~ excluding an issuance or distribution of Common Stock described in Section 10.4(a)) or (ii) issue or distribute generally to ~~subsection~~ such holders rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for, purchase, convert into or exchange for Capital Stock at a price per share less than the Current Market Price per share of such Capital Stock on the date of issuance or distribution, then, in each such case, at the earliest of (fA) ~~below~~the date the Company enters into a firm contract for such issuance or distribution, (B) ~~of the Class A common stock on~~ the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities or (C) the date of actual issuance or distribution of any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities, the Conversion Price shall be ~~adjusted so that the same shall equal the price determined~~ reduced by multiplying the Conversion Price in effect immediately prior to such ~~record~~ earliest date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.by:

Appears in 1 contract

Samples: Indenture (Hybridon Inc)

Adjustment of Conversion Price. The Conversion Price shall be ~~subject to adjustment~~ adjusted from time to time during the period stated in paragraph 8 of the Securities as follows: (a) In case the Company shall hereafter (i) pay a dividend or make a distribution on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock of the Company which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection ~~(a)~~ shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a) the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in an Officers' Certificate filed with the Trustee and with any Conversion Agent) shall determine in good faith the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock. (b) In case the Company shall hereafter issue rights, warrants or options ~~or warrants~~ to ~~all~~ holders of ~~Class A common stock~~ its outstanding shares of Common Stock generally entitling them to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fe) ~~below~~of this Section 5.04) of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of the close of business~~ on such record date plus the number of shares of ~~Class A common stock~~ Common Stock which the aggregate offering price of the total number of shares of ~~Class A common stock~~ Common Stock so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price (as determined pursuant to subsection (f) below)~~current market price, and of which the denominator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so~~ Common Stock offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall be made successively whenever any such rights or warrants are distributed, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such ~~record date~~rights, warrants or options. ~~For~~ If at the ~~purposes~~ end of ~~this subsection~~ the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (~~b),~~ or the number of shares of ~~Class A common stock at any time outstanding shall not include shares held in~~ Common Stock issuable upon conversion of convertible securities or the ~~treasury~~ exchange of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsexchangeable securities actually issued). (c) In case the Company shall hereafter distribute to ~~all~~ holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock),~~ its outstanding Common Stock generally evidences of indebtedness, ~~cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above)~~ cash or other assets (including ~~securities of Persons other than Company~~ securities, but excluding ~~(i)~~ those dividends, rights, warrants, options and distributions referred to above and excluding dividends or and distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11cash), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction the numerator of which ~~the numerator~~ shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fe) ~~below~~of this Section 5.04) of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination shall be conclusive ~~evidence of such fair market value~~ and shall be described in ~~a board resolution~~an Officers' Certificate filed with the Trustee and with any Conversion Agent) of the portion of ~~the~~ such evidences of ~~indebtedness, shares of capital stock,~~ indebtedness or assets (but not cash~~, rights, options, warrants or other assets~~ ) so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of ~~the Class A common stock~~Common Stock. Such adjustment shall become effective immediately after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution. ~~Notwithstanding the foregoing,~~ In any case in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of which this subsection (c) ~~of Section 9.6 make proper provision so that the holder of the Note who converts the Note~~ is applicable, subsection (~~or any portion thereof~~b) ~~after the record date for such distribution and prior to the expiration or redemption of the Rights~~ shall not be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsapplicable. (d) In case the Company shall, (i) by dividend or otherwise, at any time ~~make a distribution~~ distribute to all holders of its ~~Class A common stock exclusively in~~ Common Stock cash (~~including any distributions of cash out of current or retained earnings of Company but~~ excluding any cash ~~that is distributed as part~~ portions of ~~a distribution requiring a Conversion Price adjustment pursuant~~ distributions referred to ~~subsection~~ in (c) ~~of this Section~~above or cash distribution upon a merger or consolidation to which Section 5.10 applies) in an aggregate amount that, combined together with (a) all other such all-cash distributions made within the ~~sum~~ preceding 12 months in respect to which no adjustment has been made and (b) any cash and their fair market of other consideration paid or payable in respect of any tender offers by the Company for Common Stock concluding within the preceding 12 months in respect of which no adjustment has been made, exceeds 12.5% of the Company's market capitalization (xdefined as being the product of the current market price of the Common Stock times the number of shares of Common Stock then outstanding) on the record date for such distribution (as determined by the Board of Directors, whose determination shall be described in an Officers' Certificate filed with the Trustee and any Conversion Agent), and or (ii) purchase Common Stock pursuant to a tender offer made by the Company or any of its subsidiaries which involves an aggregate consideration that together with (a) any cash and the fair market value of any other consideration paid or payable in any other tender offer by the Company or any of its subsidiaries of Common Stock expiring within the 12 months preceding the expiration of such tender offer in respect of which no adjustment has been made (as determined by the Board of Directors, whose determination shall be described in an Officers' Certificate filed with the Trustee and any Conversion Agent) and (b) the aggregate amount of any ~~other~~ such all-cash distributions ~~made exclusively~~ referred to in ~~cash~~ (i) above to all holders of ~~Class A common stock~~ Common Stock within the 12 months preceding the ~~date fixed for determining the stockholders entitled to~~ expiration of such ~~distribution (the "Distribution Record Date") and~~ tender offer in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has adjustments have been made, exceeds ~~12 1/2~~12.5% of the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock~~ Company's market capitalization on the ~~Distribution Record Date multiplied by the number~~ expiration of ~~shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)~~such tender offer, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying ~~such~~ the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fe) of this ~~Section~~Section 5.04) of the ~~Class A common stock~~ Common Stock on the ~~Distribution Record Date~~ date of such effectiveness less the ~~sum of the aggregate~~ amount of cash ~~and the aggregate Excess Payments~~ so ~~distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made)~~ distributed applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) Common Stock and the denominator shall be such ~~Current Market Price~~ current market price per share of the Common Stock (determined as ~~provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date~~aforesaid), such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date~~date fixed for the payment of such distribution. (e) ~~In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of~~ For the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount purpose of any ~~distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash~~ computation under subsections (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"b), ~~and as to which no adjustment in the Conversion Price pursuant to subsection~~ (c) or and (d) of this Section 5.04 or under Section 5.03, the "current market price" per share of Common Stock on any record date shall be deemed to be the average of the daily closing prices for the five consecutive trading days immediately preceding the date in question. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the American Stock Exchange, or, if the shares of Common Stock are not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the shares are listed or admitted to trading, or if they are not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market System (the NMS") or any comparable system, or if the Common Stock is not quoted on the NMS or a comparable system, the closing bid and asked prices as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. (f) In any case in which this ~~subsection~~ Section 5.04 shall require that an adjustment be made immediately following a record date, the Company may elect to defer (ebut only until five Business Days following the filing by the Company with the Trustee and any Conversion Agent of the certificate of Independent Public Accountants described in Section 5.05) ~~has been made plus (y)~~ issuing to the ~~aggregate amount of all Excess Payments in respect~~ Holder of any ~~other tender offers or other negotiated transactions by Company or any~~ Security converted after such record date the shares of ~~its Subsidiaries for Class A common stock concluded within~~ Common Stock issuable upon such conversion over and above the ~~12 months preceding~~ shares of Common Stock issuable upon such conversion on the ~~Purchase Date and in respect~~ basis of ~~which no~~ the Conversion Price prior to adjustment. (g) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided however, that any adjustments which by reason of this subsection (g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 5.04 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. Anything in this Section 5.04 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 5.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable; provided that in no event shall such Conversion Price be less than the par value of the Common Stock at the time such reduction is made. No adjustment to the Conversion Price pursuant to this Indenture shall reduce the Conversion Price below the then existing par value per share of Common Stock. The Company hereby covenants not to take any action to increase the par value per share of the Common Stock. No adjustment in the Conversion Price need be made for rights to purchase shares of Common Stock or issuances of Common Stock pursuant to a Company plan for reinvestment of dividends or interest. (h) In the event that at any time as a result of an adjustment made pursuant to subsection (~~c) or (d~~a) of this Section ~~or this subsection (e) has been made~~5.04, ~~exceeds 12 1/2%~~ the Holder of any Securities thereafter surrendered for conversion shall become entitled to receive any shares of the ~~product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of~~ Company other than shares of ~~Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)~~Common Stock, thereafter the Conversion Price of such other shares so receivable upon conversion of any Security shall be ~~reduced so that the same shall equal the price determined by multiplying such Conversion Price~~ subject to adjustment from time to time in ~~effect immediately prior~~ a manner and on terms as nearly equivalent as practicable to the ~~effectiveness of~~ provisions with respect to Common Stock contained in this Article Five. (i) In addition to the foregoing adjustments, the Company will be permitted to make such reduction in the Conversion Price as it considers to be advisable in order that any event treated for federal income tax purposes as a dividend or distribution of stock or stock rights will not be taxable to the holders of the Common Stock. Any such reduction ~~contemplated by this subsection (e) by a fraction of which the numerator~~ shall be described in an Officers' Certificate filed with the ~~Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash~~ Trustee and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateany Conversion Agent.

Appears in 1 contract

Samples: Indenture (Trans Lux Corp)

Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment ~~from time to time~~ as follows: (a) In case the Company shall at any time or from time to time (i) pay a dividend in or make a distribution on the outstanding shares of ~~Class A common stock to holders of Class A common~~ Common Stock in capital stock (which, for purposes of this SECTION 1303 shall include, without limitation, any options, warrants or ~~any event treated as such for U.S. Federal income tax purposes)~~other rights to acquire capital stock) of the Company, (ii) ~~make a distribution in~~ subdivide the outstanding shares of ~~Class A common stock to holders~~ Common Stock into a larger number of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~shares, (iii) ~~subdivide its~~ combine the outstanding shares of ~~Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock~~ Common Stock into a smaller number of shares, (iv) issue any shares of ~~Class A common stock~~its capital stock in a reclassification of the Common Stock or (v) pay a dividend or make a distribution on the outstanding shares of Common Stock in shares of its capital stock pursuant to a shareholder rights plan, "poison pill" or similar arrangement, then, and in each such case, the conversion privilege and the Conversion Price in effect immediately prior to such ~~action~~ event shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Bond thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock or other securities of the Company that such Holder would have owned ~~immediately following~~ or would have been entitled to receive upon or by reason of any of the events described above, had such ~~action had the Note~~ Bond been converted immediately prior ~~thereto~~to the happening of such event. ~~Any~~ Such adjustment shall be made successively whenever any event described above shall occur. An adjustment made pursuant to this subsection (a) shall become effective ~~immediately after the record date~~ retroactively (A) in the case of a any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution ~~and shall become effective immediately after the effective date~~ or (B) in the case of ~~a subdivision~~ any such subdivision, combination or ~~combination~~reclassification, at the close of business on the day upon which such corporate action becomes effective. (b) In case the Company shall at any time or from time to time issue ~~rights, options~~ or ~~warrants to all holders of Class A common stock entitling them to subscribe for or purchase~~ sell shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~or exchangeable for shares of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock) to all holders of its Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share ~~(as determined pursuant to subsection (f) below)~~ of ~~the Class A common stock on~~ Common Stock then in effect at the record date ~~for determining~~ referred to in the ~~holders~~ immediately following paragraph (treating the price per share of any security convertible or exchangeable or exercisable into Common Stock as equal to (x) the sum of the ~~Class A common stock entitled~~ price for such security convertible, exchangeable or exercisable into Common Stock plus any additional consideration payable (without regard to ~~receive~~ any anti-dilution adjustments) upon the conversion, exchange or exercise of such ~~rights~~security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, ~~options~~ exchangeable or ~~warrants~~exercisable security), other than issuances or sales of Common Stock pursuant to any employee benefit plan, then, and in each such case, the Conversion Price then in effect shall be adjusted ~~so that the same shall equal the price determined~~ by ~~multiplying~~ dividing the Conversion Price in effect on the day immediately prior to such record ~~date~~ date, by a fraction (A) the numerator of which ~~the numerator~~ shall be the sum of the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of ~~Class A common stock so offered for subscription or purchase~~ Common Stock issued (or the maximum number into which such convertible or exchangeable securities initially may convert or exchange or for which such options, warrants or other rights initially may be exercised) and (B) the ~~convertible securities so offered are convertible). Such adjustments~~ denominator of which shall ~~become effective immediately after such record date. For~~ be the ~~purposes~~ sum of ~~this subsection (b),~~ the number of shares of ~~Class A common stock at any time~~ Common Stock outstanding ~~shall not include shares held in~~ on such record date plus the ~~treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions~~ number of shares of Common Stock that the aggregate consideration for the total number of such ~~Class A common stock~~additional shares of Common Stock so issued (or into which such convertible or exchangeable securities may convert or exchange or for which such options, warrants or other rights may be exercised plus the aggregate amount of any additional consideration initially payable upon conversion, exchange or exercise of such security) would purchase at the Current Market Price per share of Common Stock on such record date. ~~The~~ If the Company shall ~~not~~ issue ~~any~~ or sell shares of Common Stock or rights, ~~options~~ options, warrants or convertible or exchangeable securities for a consideration consisting, in whole or in part, of property other than cash, the amount of such consideration shall be determined in good faith by the Board of Directors whose determination shall be conclusive and evidenced by a Board Resolution. Such adjustment shall be made whenever such shares, securities, options, warrants ~~in respect~~ or other rights are issued, and shall become effective retroactively immediately after the close of business on the record date for the determination of stockholders entitled to receive such shares, securities, options, warrants or other rights; provided, that the determination as to whether an adjustment is required to be made pursuant to this SECTION 1303(B) shall only be made upon the issuance of such shares or such convertible or exchangeable securities, options, warrants or other rights, and not upon the issuance of ~~Class A common stock held~~ the security into which such convertible or exchangeable security converts or exchanges, or the security underlying such option, warrant or other right. Notwithstanding the foregoing, in the ~~treasury~~ event of ~~Company. In determining whether any rights, options~~ such issuance or ~~warrants entitle the holders to subscribe for or purchase shares~~ sale of ~~Class A common stock~~ Common Stock at a price less than the Current Market Price, no such adjustment under this SECTION 1303(B) need be made to the Conversion Price unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price then in effect. Any lesser adjustment shall be carried forward and ~~in determining~~ shall be made at the ~~aggregate offering price~~ time of and together with the next subsequent adjustment that, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsConversion Price. (c) ~~In case~~ If the Company shall distribute to all holders of ~~Class A common stock shares of capital stock of Company~~ Common Stock (~~other than Class A common stock), evidences of indebtedness, cash, rights, options~~ i) any rights or warrants ~~entitling the holders thereof~~ to subscribe for or purchase ~~securities~~ any security of the Company (other than ~~rights, options or warrants described~~ those referred to in ~~subsection~~ paragraph (b) above) or ~~other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below,~~ (ii) ~~dividends and distributions described in subsection~~ any evidence of indebtedness or other securities of the Company (aother than capital stock) ~~above and~~ or (iii) assets (other than cash) having an aggregate fair market value (as determined by the Board of Directors as provided below) that, together with all other such distributions ~~in connection with~~ for which an adjustment pursuant to this paragraph (c) has not been made within 12 months preceding the ~~consolidation~~record date fixed for determination of holders entitled to receive such distribution, ~~merger or transfer~~ exceeds 10% of ~~assets covered~~ the product of the number of shares of Common Stock outstanding on such record date multiplied by ~~Section 9.11)~~the Current Market Price per share of the Common Stock on such record date, then in each ~~such~~ case the Conversion Price shall be adjusted so that the ~~same~~ Conversion Price shall thereafter equal the price determined by multiplying the Conversion Price ~~in effect~~ on the day immediately ~~prior to the~~ preceding such record date ~~of such distribution~~ by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be ~~the~~ such Current Market Price ~~(determined as provided in subsection (f) below) of~~ minus the ~~Class A common stock on the record date mentioned below less the fair market value on such record date~~ per share Fair Market Value (as determined ~~by the~~ in a Board ~~of Directors~~Resolution, ~~whose determination~~ which shall be conclusive evidence of such ~~fair market value and described in a board resolution~~Fair Market Value) of such rights, warrants, evidences of indebtedness or other securities or assets, as the ~~portion~~ case may be, so distributed to holders of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and the denominator of which ~~the denominator~~ shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the RightsPrice. (d) ~~In case Company shall, by dividend or otherwise~~If, at any ~~time make~~ time, as a ~~distribution to all holders~~ result of ~~its Class A common stock exclusively in cash (including~~ any ~~distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price~~ adjustment made pursuant to ~~subsection~~ paragraphs (a), (b) or (c) ~~of this Section) in an aggregate amount that~~above, ~~together with~~ the ~~sum of (x) the aggregate amount~~ Holder of any ~~other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed~~ Bond thereafter surrendered for ~~determining the stockholders~~ conversion shall become entitled to receive any shares of capital stock of the Company other than shares of Common Stock, the number of such ~~distribution~~ shares so receivable upon conversion of any Bond shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in such paragraphs (~~the "Distribution Record Date"~~a), (b) and ~~in respect of which no Conversion Price adjustment pursuant to subsection~~ (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to ~~outstanding shares of Class A common stock within such 12 months (including, without limitation,~~ the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateCommon Stock. (e) ~~In case~~ If the Company shall take a ~~tender offer~~ record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other ~~negotiated transaction made by Company~~ distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or ~~any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of~~ deliver such ~~tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by~~ dividend or ~~otherwise~~distribution, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which then thereafter no adjustment in the Conversion Price ~~pursuant~~ then in effect shall be required by reason of the taking of such record. (f) Upon any increase or decrease in the Conversion Price, then, and in each such case, the Company promptly shall deliver to ~~subsection~~ the Trustee and each Holder at least ten (c10) Business Days prior to effecting any of the foregoing transactions an Officers' Certificate, setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated and specifying the increased or decreased Conversion Price then in effect following such adjustment. (g) Notwithstanding any other provision of this SECTION 1303, no adjustment to the Conversion Price shall reduce the Conversion Price below the then par value per share of the Common Stock and any such purported adjustment shall instead reduce the Conversion Price to such par value. The Company hereby covenants not to take any action (i) to increase the par value per share of the Common Stock or (dii) ~~of this Section~~ that would or ~~this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments~~ does result in ~~respect of~~ any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price ~~pursuant~~ that, if made without giving effect to ~~subsection (c) or (d) of this Section or this subsection (e) has been made~~the previous sentence, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), would cause the Conversion Price ~~shall~~ to be ~~reduced so that~~ less than the ~~same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness~~ par value per share of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateCommon Stock.

Appears in 1 contract

Samples: Indenture (Polyphase Corp)

Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion ~~Price~~ Price") for a series of Securities shall be as set forth in a Board Resolution, Officer's Certificate or executed supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows: (a) In case ~~Company~~ the Issuer shall (i1) pay a dividend ~~in shares of Class A common stock to holders of Class A common stock (~~or ~~any event treated as such for U.S. Federal income tax purposes), (ii)~~ make a distribution in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock on the Common Stock, (~~iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iv3) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, (4) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~capital stock of the Issuer or (5) redeem any Associated Rights, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common~~ Common Stock or other capital stock of the Issuer which he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock (including shares of Common Stock and other capital stock) of the Issuer, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock. (b) In case ~~Company~~ the Issuer shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ Common Stock entitling them (for a period not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ current market price per share (as determined pursuant to subsection (fd) below) of the ~~Class A common stock~~ Common Stock on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (1) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, of ~~which~~ which (2) the numerator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights or warrants, immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of ~~which~~ which (3) the denominator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of ~~Class A common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)e) below, after the ~~number~~ record date for the determination of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of holders entitled to receive such ~~Class A common stock. The Company shall not issue any rights, options~~ rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants~~, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors~~. (c) In case ~~Company~~ the Issuer shall distribute to substantially all holders of ~~Class A common stock shares of capital stock of Company (other than Class A common stock)~~Common Stock, evidences of indebtedness, ~~cash~~equity securities (including equity interests in the Issuer's Subsidiaries) other than Common Stock, ~~rights~~or other assets (other than cash dividends paid out of surplus of the Issuer), ~~options~~ or shall distribute to substantially all holders of Common Stock rights or warrants ~~entitling the holders thereof~~ to subscribe for ~~or purchase~~ securities (other than ~~rights, options or warrants described~~ those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (determined as provided in subsection (fd) below) of the ~~Class A common stock~~ Common Stock on the record date mentioned below less the then fair market value ~~on such record date~~ (as determined by the Board of Directors, whose determination ~~shall~~ shall, if made in good faith, be conclusive evidence of such fair market ~~value and described in a board resolution~~value) of the portion of the ~~evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other~~ assets so distributed or of such subscription rights or warrants applicable to one share of ~~Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)~~Common Stock, and of which the denominator shall be such ~~Current Market Price~~ current market price per share of the ~~Class A common stock~~Common Stock. Such adjustment shall become effective ~~immediately~~ immediately, except as provided in subsection (e) below, after the record date for the determination of ~~the holders of Class A common stock~~ stockholders entitled to receive such distribution~~. Notwithstanding~~ . (d) For the ~~foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares~~ purpose of ~~Company's capital stock (other than rights, options or warrants referred to in subsection~~ any computation under subsections (b) ~~above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection~~ and (c) above, the current market price per share of ~~Section 9.6 make proper provision so that~~ Common Stock on any date shall be deemed to be the ~~holder~~ average of the ~~Note who converts~~ Last Sale Prices for the ~~Note~~ 30 consecutive Trading Days commencing 45 Trading Days before the date in question. (or e) In any ~~portion thereof)~~ case in which this Section 13.4 shall require that an adjustment be made immediately following a record date, the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Issuer shall, with respect to any Security converted after ~~the~~ such record date ~~for~~ and before such ~~distribution and prior~~ adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 13.3 or issuing to the ~~expiration or redemption~~ Holder of such Security the number of shares of Common Stock and other capital stock of the ~~Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock~~ Issuer issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in ~~accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder~~ excess of the number of shares of ~~Class A common~~ Common Stock and other capital stock ~~into which the principal amount~~ of the ~~Note so converted was convertible immediately~~ Issuer issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days after such adjustment shall have become effective, pay to such Holder the ~~Distribution Date would have been entitled~~ appropriate cash payment pursuant to Section 13.3 and issue to such Holder the additional shares of Common Stock and other capital stock of the Issuer issuable on ~~the Distribution Date in accordance with the terms and provisions of and applicable to the Rights~~such conversion. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held No adjustment in ~~the treasury of Company),~~ the Conversion Price shall be ~~reduced so that the same shall equal the price determined by multiplying~~ required unless such ~~Conversion Price in effect immediately prior to the effectiveness~~ adjustment would require an increase or decrease of at least 1% of the Conversion ~~Price reduction contemplated~~ Price; provided, that any adjustments which by reason of this ~~subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in~~ subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment and, provided further, that adjustment shall be required and made in accordance with the provisions of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period Article Thirteen (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in other than this subsection (f)) not later than such time as may be required in order to preserve the tax-free nature of ~~this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior~~ a distribution to the ~~opening~~ holders of ~~business on the day following the Distribution Record Date. (e) In case a tender offer~~ Securities or ~~other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock~~ Common Stock. All calculations under this Article Thirteen shall be ~~consummated, if an Excess Payment is~~ made ~~in respect~~ to the nearest cent or to the nearest one-hundredth of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offera share, as the case may be. (g) Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each Conversion Agent an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be (conclusive evidence of the ~~"Purchase Date")~~correctness of such adjustment, and as (ii) mail or cause to ~~which no~~ be mailed a notice of such adjustment to each Holder of Securities in the manner provided in Section 11.4. Anything in this Section 13.4 to the contrary notwithstanding, the Issuer shall be entitled to make such reductions in the Conversion ~~Price pursuant~~ Price, in addition to ~~subsection (c) or (d) of~~ those required by this Section 13.4, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or ~~this subsection~~ warrants to purchase stock or securities, or distribution of other assets (eother than cash dividends) ~~has been~~ hereafter made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the ~~number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price~~ Issuer to its stockholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.

Appears in 1 contract

Samples: Subordinated Indenture (Service Corporation International)

Adjustment of Conversion Price. The Conversion Price shall be as specified in Section 9 of the form of Note, subject to adjustment as provided below. The Conversion Price shall be adjusted from time to time by the Company as follows: (a) In case ~~Company~~ the Company, after the date of this Indenture, shall (i) pay a dividend or make a distribution on its Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Common Stock, (ii~~) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of ~~shares of Class A common stock or~~ shares, (iviii) combine its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of ~~Class A common stock~~Capital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of ~~this~~ any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which he~~ Common Stock or other Capital Stock of the Company that it would have owned or been entitled to receive immediately following such action had ~~the~~ such Note been converted immediately prior ~~thereto~~to the occurrence of such event. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective immediately after the record ~~date~~ date, in the case of a dividend or ~~distribution and shall become effective~~ distribution, or immediately after the effective ~~date~~ date, in the case of a ~~subdivision~~ subdivision, combination or ~~combination~~reclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Note thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any Conversion Agent as soon as practicable) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock. (b) In case ~~Company~~ the Company, after the date of this Indenture, shall issue rights, warrants or options to all or ~~warrants to~~ substantially all holders of ~~Class A common stock~~ its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination for shareholders entitled to receive such rights, warrants or options) to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share ~~(or having a conversion price per share)~~ less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.the

Appears in 1 contract

Samples: Indenture (Midcom Communications Inc)

Adjustment of Conversion Price. ~~The~~ Except in connection with an Organic Change, which shall be subject to Section C below, the Conversion Price shall be subject to adjustment from time to time as follows: (a) In case ~~Company~~ the Corporation after the date of the original issuance of the Series A Preferred Stock shall ~~(i)~~ pay a dividend or make a distribution to all holders of shares of Common Stock in shares of ~~Class A common stock to holders of Class A common stock (or~~ Common Stock, then in any ~~event treated as~~ such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, case the Conversion Price in effect ~~immediately prior to such action shall be adjusted so that~~ at the ~~holder~~ opening of ~~this Note thereafter surrendered~~ business on the day following the record date for ~~conversion shall be~~ the determination of stockholders entitled to receive such dividend or distribution shall be reduced to a price obtained by multiplying such Conversion Price by a fraction of which (x) the numerator shall be the number of shares of ~~Class A common stock which he would have owned~~ Common Stock outstanding at the close of business on such record date and (y) the denominator shall be the sum of such number of shares of Common Stock outstanding and the total number of shares of Common Stock constituting such dividend or distribution, such reduction to become effective immediately after the opening of business on the day following such ~~action had~~ record date. If any dividend or distribution of the ~~Note been converted immediately prior thereto. Any adjustment made pursuant to~~ type described in this subsection (a) is declared but not so paid or made, the Conversion Price shall ~~become effective immediately after~~ again be adjusted to the ~~record date~~ Conversion Price that would then be in ~~the case of a~~ effect if such dividend or distribution ~~and~~ had not been declared. For purposes of this subsection (a), the number of shares of Common Stock at any time outstanding shall ~~become effective immediately after the effective date~~ not include shares held in the ~~case~~ treasury of ~~a subdivision~~ the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation shall not pay any dividend or ~~combination~~make any distribution on shares of Common Stock held in the treasury of the Corporation. (b) In case ~~Company~~ the Corporation after the date of the original issuance of the Series A Preferred Stock shall issue ~~rights, options~~ rights or warrants to all holders of ~~Class A common stock~~ any class of Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock (or securities convertible into ~~Class A common stock~~Common Stock) at a price per share (or having a conversion price per share) less than the ~~Current Market~~ Closing Price ~~per share (as determined pursuant to subsection (f) below)~~ of the ~~Class A common stock~~ Common Stock on the record date for ~~determining~~ the ~~holders~~ determination of ~~the Class A common stock~~ stockholders entitled to receive such ~~rights, options~~ right or ~~warrants~~warrant, the Conversion Price shall be ~~adjusted so that the same shall equal the~~ reduced to a price ~~determined~~ obtained by multiplying ~~the~~ such Conversion Price ~~in effect immediately prior to such record date~~ by a fraction of which (x) the numerator shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding ~~as of~~ at the close of business on such record date plus the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at the Closing Price on such ~~Current Market Price (as determined pursuant to subsection (f) below)~~record date, and (y) the denominator of which ~~the denominator~~ shall be the number of shares of ~~Class A common stock~~ Common Stock outstanding at the close of business on such record date plus the total number of ~~additional~~ shares of ~~Class A common stock~~ Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such ~~adjustments~~ adjustment shall become effective immediately after the opening of business on the day following such record date. ~~For~~ To the ~~purposes~~ extent that shares of ~~this subsection~~ Common Stock (b)or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustment made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock (or securities convertible into Common Stock) actually delivered. If such ~~Class A common stock. The Company shall not issue any rights, options~~ rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in ~~respect of shares of Class A common stock held in the treasury of Company~~effect if such record date had not been fixed. In determining whether any ~~rights, options~~ rights or warrants entitle the holders to subscribe for or purchase shares of ~~Class A common stock~~ Common Stock at less than ~~the Current Market Price~~such Closing Price on such record date, and in determining the aggregate offering price of such shares of ~~Class A common stock~~Common Stock, there shall be taken into account any consideration received by ~~Company~~ the Corporation for such ~~rights, warrants,~~ rights or ~~options~~warrants and any amount payable on exercise or conversion thereof, the fair market value of such consideration, if ~~any,~~ other than cash, to be determined by the Board of ~~Directors~~Directors in its good faith judgment, whose determination shall be conclusive. (c) In case ~~Company~~ after the date of the original issuance of the Series A Preferred Stock outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case after the original issuance of the Series A Preferred Stock outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Corporation after the date of the original issuance of the Series A Preferred Stock shall distribute to all holders of ~~Class A common stock~~ shares of ~~capital stock~~ Common Stock evidences of ~~Company~~ its indebtedness or assets (including any regular periodic cash dividend or extraordinary cash dividend), Equity Securities (other than ~~Class A common stock), evidences of indebtedness, cash, rights, options~~ Common Stock) or ~~warrants entitling the holders thereof~~ rights to subscribe for ~~or purchase securities (~~Equity Securities other than ~~rights~~Common Stock, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price in effect immediately prior to the close of business on the record date for the determination of stockholders entitled to receive such distribution shall be adjusted to a price obtained by multiplying such Conversion Price by a fraction of which (x) the numerator shall be the Closing Price per share of Common Stock on such record date, and (y) the denominator shall be such Closing Price per share of Common Stock on such record date plus the then-current fair market value as of such record date (as determined by the Board of Directors in its good faith judgment) of the portion of assets or evidences of indebtedness or Equity Securities or subscription rights so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the Corporation issues or distributes to each Holder the assets, securities or rights referred to above that each such Holder would have been entitled to receive had the Series A Preferred Stock held by such Holder been converted prior to such record date; provided further, however, that if the then-current fair market value (as so determined by the Board of Directors in its good faith judgment) of the portion of assets or evidences of indebtedness or Equity Securities or subscription rights so distributed applicable to one share of Common Stock is equal to or greater than the Closing Price on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of such assets or evidences of indebtedness or Equity Securities or subscription rights so distributed that such Holder would have received had such Holder converted each share of its Series A Preferred Stock on the record date. If any dividend or distribution of the type described in this subsection (d) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such dividend or distribution had not been declared. The Corporation shall provide any Holder, upon receipt of a written request therefor, with any indenture or other instrument defining the rights of the holders of any indebtedness, assets, subscription rights or Equity Securities referred to in this subsection (d). (e) In case, after the date of the original issuance of the Series A Preferred Stock, a tender or exchange offer made by the Corporation or any Subsidiary of the Corporation for all or any portion of the Common Stock shall be consummated and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors in its good faith judgment) at the last time (the "Offer Time") tenders may be made pursuant to such tender or exchange offer (as it may be amended) that, together with the aggregate of the cash plus the fair market value (as determined by the Board of Directors in its good faith judgment), as of the Offer Time, of consideration payable in respect of any tender or exchange offer by the Corporation or any such Subsidiary for all or any portion of the Common Stock consummated preceding the Offer Time and in respect of which no Conversion Price adjustment pursuant to this subsection (e) has been made, exceeds 7.5% of the product of the Closing Price of the Common Stock at the Offer Time multiplied by the number of shares of Common Stock outstanding (including any tendered shares) at the Offer Time, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the ~~date of such distribution~~ Offer Time by a fraction of which (x) the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the ~~Current Market~~ Closing Price ~~per share (determined as provided in subsection (f) of this Section)~~ of the ~~Class A common stock on~~ Common Stock at the ~~Distribution Record Date~~ Offer Time multiplied by the number of shares of ~~Class A common stock~~ Common Stock outstanding on (including any tendered shares) at the ~~Distribution Record Date~~ Offer Time minus (~~excluding shares held in~~ ii) the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share fair market value (determined as ~~provided in subsection (f) of this Section~~aforesaid) of the ~~Class A common stock~~ aggregate consideration payable to stockholders based on the ~~Distribution Record Date less~~ acceptance (up to any maximum specified in the ~~sum~~ terms of the ~~aggregate amount~~ tender or exchange offer) of ~~cash~~ all shares validly tendered and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum not withdrawn as of the ~~aggregate amount of cash and~~ Offer Time (the ~~aggregate Excess Payments~~ shares deemed so ~~distributed~~accepted, ~~paid or payable with respect~~ up to ~~outstanding shares of Class A common stock within~~ any such ~~12 months (including~~maximum, ~~without limitation,~~ being referred to as the ~~distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date~~"Tendered Shares") and (y) the denominator shall be the product of (i) such ~~Current Market~~ Closing Price ~~per share~~ at the Offer Time multiplied by (~~determined as provided in subsection (f~~ii) such number of ~~this Section)~~ outstanding shares at the Offer Time minus the number of ~~the Class A common stock on the Distribution Record Date~~Tendered Shares, such reduction to become effective immediately prior to the opening of business on the day following the ~~Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary~~ Offer Time. For purposes of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made), ~~exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by~~ the number of shares of ~~Class A common stock~~ Common Stock at any time outstanding ~~on the Purchase Date (including any tendered shares but excluding any~~ shall not include shares held in the treasury of ~~Company~~the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. (f) The Corporation may make such reductions in the Conversion Price, in addition to those required by clauses (a), (b), (c), (d) or (e) of this Section B, as it considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock or from any event treated as such for income tax purposes. In the event the Corporation elects to make such a reduction in the Conversion Price, the Corporation will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Corporation shall ~~be reduced so that~~ mail to the ~~same shall equal~~ Holders of then-outstanding shares of Series A Preferred Stock a notice of the ~~price determined by multiplying such Conversion Price in effect immediately~~ reduction at least fifteen (15) days prior to the ~~effectiveness~~ date the reduced Conversion Price takes effect, and such notice shall state the reduced Conversion Price and the period it will be in effect. (g) Whenever the Conversion Price is adjusted as herein provided, the Corporation shall promptly file at the principal office of the Corporation, or with an agent of the Corporation if one has been designated by the Board of Directors pursuant to Article VII.A(b) hereof, a certificate signed by a duly authorized officer of the Corporation, setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Corporation shall prepare a notice of such adjustment of the Conversion Price ~~reduction contemplated by~~ setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Price to each Holder at its last address appearing in the stock register within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. (h) Notwithstanding anything herein to the contrary, no adjustment under this ~~subsection (e) by a fraction of which the numerator~~ Article VII shall be made to the ~~Current Market~~ Conversion Price ~~per share~~ unless such adjustment would require an increase or decrease of at least one-half of one percent (~~determined as provided in subsection (f) of this Section~~0.5%) of the ~~Class A common stock on~~ Conversion Price then in effect. Any lesser adjustment shall be carried forward and shall be made at the ~~Purchase Date~~ time of and together with the next subsequent adjustment, if any, which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least one-half of one percent (0.5%) of such Conversion Price. No adjustment under this Article VII shall be made if such adjustment will result in a Conversion Price that is less than the ~~sum~~ par value of the ~~aggregate amount~~ Common Stock. All calculations under this Section B shall be made by the Corporation and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one a share of ~~Class A common stock (which shall be determined by dividing~~ Common Stock, as the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datecase may be.

Appears in 1 contract

Samples: Securities Purchase Agreement (Loral Space & Communications Inc.)

Adjustment of Conversion Price. The conversion price (herein called the "Conversion ~~Price~~ Price") shall be subject to adjustment from time to time as follows: (a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of ~~Class A common stock to holders~~ Common Stock on any class of ~~Class A common stock (or any event treated as such for U.S. Federal income tax purposes)~~Capital Stock of the Company, (~~ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii~~2) subdivide its outstanding shares of ~~Class A common stock~~ Common Stock into a greater number of shares ~~of Class A common stock~~ or (iv3) combine or reclassify its outstanding shares of ~~Class A common stock~~ Common Stock into a smaller number of ~~shares of Class A common stock~~shares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the ~~holder~~ Holder of ~~this Note~~ any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of ~~Class A common stock which~~ Common Stock that he would have owned immediately following such action had ~~the Note~~ such Security been converted immediately prior thereto. ~~Any~~ An adjustment made pursuant to this subsection (a) shall become effective ~~immediately~~ immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue rights, options or warrants to all holders of ~~Class A common stock~~ Common Stock entitling them to subscribe for or purchase shares of ~~Class A common stock (or securities convertible into Class A common stock)~~ Common Stock at a price per share ~~(or having a conversion price per share)~~ less than the ~~Current Market Price~~ then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) ~~of the Class A common stock~~ on the record date ~~for determining the holders of the Class A common stock entitled to receive such rights, options or warrants~~mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by ~~multiplying~~ multiplying: (i) the Conversion Price in effect immediately prior to the date of issuance of such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, of ~~which~~ which (ii) the numerator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding as on the date of ~~the close~~ issuance of ~~business on~~ such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares ~~of Class A common stock~~ which the aggregate offering price of the total number of shares ~~of Class A common stock~~ so offered ~~(to the holders of outstanding Class A common stock)~~ for subscription or purchase ~~(or the aggregate conversion price of the convertible securities so offered)~~ would purchase at such ~~Current Market Price~~ current market price (as determined ~~pursuant to subsection (f) below~~by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of ~~which~~ which (iii) the denominator shall be (A) the number of shares of ~~Class A common stock~~ Common Stock outstanding on the date of issuance of such ~~record date~~ rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of ~~Class A common stock~~ Common Stock which are so offered for subscription or ~~purchase (or into which the convertible securities so offered are convertible)~~purchase. Such ~~adjustments~~ adjustment shall become effective ~~immediately after such record date. For the purposes of this~~ immediately, except as provided in subsection (b)h) below, after the ~~number~~ record date for the determination of ~~shares of Class A common stock at~~ holders entitled to receive such rights, options or warrants; provided, however, that if -------- ------- any ~~time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of~~ such ~~Class A common stock. The Company shall not issue any~~ rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the ~~Board~~ Company as described in this subsection (b) are only exercisable upon the occurrence of ~~Directors~~certain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur. (c) In case the Company or any subsidiary of the Company shall distribute to all holders of ~~Class A common stock shares~~ Common Stock, any of ~~capital stock of Company (other than Class A common stock)~~its assets, evidences of indebtedness, ~~cash, rights, options~~ cash or ~~warrants entitling the holders thereof to subscribe for~~ other assets or ~~purchase securities (~~shares of Capital Stock other than ~~rights~~Common Stock (including securities, ~~options~~ but other than (x) dividends or ~~warrants described~~ distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the ~~Current Market~~ then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution. (d) In case the Company or any subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to 77 receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d). (e) In case there shall be completed a tender or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 13.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the ~~Class A common stock~~ Common Stock on the ~~record date mentioned below less~~ Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such ~~record date~~ current market price per share on the Expiration Time times (as ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immedi- 78 ately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of ~~Directors, whose determination shall be conclusive evidence~~ Directors of ~~such fair market value~~ the Company and described in a ~~board resolution~~Board Resolution. (f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the ~~portion~~ Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the ~~evidences~~ date in question and the date before the "`ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of ~~indebtedness~~Last Sale Price in Section 13.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Company, shall be used. For purposes of this paragraph, the term "`ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer. (g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. (h) In any case in which this Section 13.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 13.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other capital ~~stock, cash, rights, options, warrants~~ stock of the Company (or other assets ~~so distributed applicable to one share of Class A common stock (determined on the basis~~ or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the ~~Class A common stock outstanding~~ Company issuable thereupon only on the ~~record date)~~basis of the Conversion Price prior to adjustment, and ~~of which the denominator shall be~~ (ii) not later than five Business Days after such ~~Current Market Price of the Class A common stock. Such~~ adjustment shall have become ~~effective immediately after~~ effective, pay to such Holder the ~~record date for~~ appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the ~~determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for~~ additional shares of Common Stock and other Capital Stock of the Company issuable on such conversion. (i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this -------- subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Company~~'s capital stock~~ . (k) In the event that the Company distributes rights or warrants (other than ~~rights, options or warrants~~ those referred to in subsection (b) above) ~~("Rights")~~ pro rata to ~~all~~ holders of ~~Class A common stock~~Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company ~~may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6~~ shall make proper provision so that the ~~holder~~ Holder of ~~the~~ any Note ~~who converts the Note (or any portion thereof) after the record date~~ surrendered for ~~such distribution and prior to the expiration or redemption of the Rights shall~~ conversion will be entitled to receive upon such conversion, in addition to the shares of ~~Class A common stock~~ Common Stock issuable upon such conversion (the "Conversion Shares"), a number of ~~Rights~~ rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of ~~Rights~~ rights or warrants of separate certificates evidencing such ~~Rights~~ rights or warrants (the "Distribution Date"), the same number of ~~Rights~~ rights or warrants to which a holder of a number of shares of ~~Class A common stock~~ Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the ~~Rights;~~ rights or warrants, and (ii) if such conversion occurs after ~~the~~ such Distribution Date, the same number of ~~Rights~~ rights or warrants to which a holder of the number of shares of ~~Class A common stock~~ Common Stock into which the principal amount of ~~the~~ such Note so converted was convertible immediately prior to ~~the~~ such Distribution Date would have been entitled on ~~the~~ such Distribution Date in accordance with the terms and provisions of and applicable to the ~~Rights~~rights or warrants. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.

Appears in 1 contract

Samples: Indenture (United States Filter Corp)

Common use of Adjustment of Conversion Price Clause in Contracts