Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification. (b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered). (c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. (d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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
Appears in 1 contract
Samples: Indenture (Manugistics Group Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 Per Share of Common Stock (as determined in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Share of Common Stock on such current market pricerecord date, and of which (y) the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.07), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution4.07), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of ----------------------- its Common Stock cash in an aggregate amount that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.07 has been made and (B) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.07 has been made, exceeds an amount equal to 10.0% of the product of the Current Market Price Per Share of Common Stock on the Business Day (the "Determination Date") ------------------ immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the Current Market Price Per Share of the Common Stock on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such Current Market Price Per Share of the Common Stock on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(1) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as reasonably determined in good faith by way the Board of tender offerDirectors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) shares of Common Stockany other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 4.07 has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 4.07 has been made, exceeds 10an amount equal to 10.0% of the product of the Current Market Capitalization Price Per Share of Common Stock as of the last date (the "Expiration Date") tenders could --------------- have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of --------------- shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price Per Share of the Common Stock on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of the Company) at the Expiration Time and the Current Market Price Per Share of Common Stock on the Trading Day next succeeding the Expiration Date, such repurchasereduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.07(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.07(e).
(2) For purposes of Section 4.07(d) and 4.07(e), the term "tender offer" shall mean and include both tender offers and exchange offers (within the meaning of U.S. Federal securities laws), all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(f) For the denominator purpose of which shall be any computation under subsections (b), (c), (d) and (e) of this Section 4.07, the current market price per share of Common Stock (the "Current Market Price Per Share") on any date shall be deemed to be ------------------------------ the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as defined in the case may be, with respect to distributions or tender offers under subsection (e) belowof this Section 4.07 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of this Section 4.07. The Closing Price for each day (the "Closing Price") shall be the last reported sales price or, in case no such ------------- reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the New York Stock Exchange (the "NYSE") or ---- the Nasdaq National Market (the "NNM"), as applicable, or, if the Common Stock --- is not listed or admitted to trading on the NYSE or the NNM, the principal national securities exchange or quotation system on which the Common Stock is quoted or listed or admitted to trading or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. If no such prices are available, the Current Market Price Per Share shall be the fair value of a share of Common Stock as reasonably determined in good faith by the Board of Directors (which shall be evidenced by an Officers' Certificate delivered to the Trustee).
(g) In any case in which this Section 4.07 shall require that an adjustment be made following a record date of such repurchase. Such adjustment shall become effective immediately after or a Determination Date or Expiration Date, as the date of such repurchase. For case may be, established for purposes of this subsection (d)Section 4.07, the "Aggregate Market Premium" is Company may elect to defer (but only until five Business Days following the excess, if any, filing by the Company with the Trustee of the aggregate repurchase price certificate described in Section 4.10) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration 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 prepared by the Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by the Company for allany reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Samples: Indenture (Penney J C Co Inc)
Adjustment of Conversion Price. The Unless otherwise specified as contemplated by Section 2.02 for Securities of that series, the conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and for Securities convertible into Common Stock shall be adjusted from time to time by the Company as follows:
(a) In case the Company Ventas, Inc. shall (i1) pay a dividend or other make a distribution on Common Stock in shares of Common Stock to holders of Common Stock, (ii2) subdivide its the outstanding Common Stock into a greater number of shares, shares or (iii3) combine its the outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto conversion price for the Securities of that series shall be adjusted so that the Holder of any such Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive after the happening of any of the events described above had such Security been converted immediately prior to the happening record date in the case of such eventa dividend or distribution or the effective date in the case of subdivision or combination. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Ventas, Inc. shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than expiring within 45 days after the record date described below and expiring not more than 45 days after such record datementioned below) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined defined for purposes of this paragraph (b) in accordance with subsection paragraph (e) below) ), at the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the Conversion Price 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, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered by receivable upon exercise of such rights, warrants rights or options (or into which the convertible securities so offered by such rights, warrants or options are convertible)warrants. Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately immediately, except as provided in paragraph (h) below, after such record date. If at In determining whether any rights or warrants entitle the end Holders of the period during which such rights, warrants Securities of that series to subscribe for 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 purchase shares of Common Stock actually issued (or at less than such current market price, and in determining the number aggregate offering price of such shares of Common Stock issuable upon conversion Stock, there shall be taken into account any consideration received by Ventas, Inc. for such rights or warrants plus the exercise price thereof, the value of convertible securities actually issued) for such consideration or exercise price, as the total number case may be, if other than cash, to be determined by the Board of shares of Common Stock offered (or the convertible securities offered)Directors.
(c) In case the Company Ventas, Inc. shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company Ventas, Inc. (other than Common Stock) or evidences of its indebtednessindebtedness or assets (excluding cash dividends or distributions paid from retained earnings of Ventas, cash, other securities Inc.) or other assets, rights or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and those rights or warrants referred to in subsection paragraph (b) above or above) (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliatesthe foregoing being herein in this paragraph (c) called the “Special Securities”), then, in each such case, unless Ventas, Inc. elects to reserve such Special Securities for distribution to the 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 concluded within to which such Holder is entitled, the preceding 12 monthsamount and kind of Special Securities which such Holder would have received if such Holder had, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of immediately prior to the record date for such distribution)the distribution of the Special Securities, then in each such case converted Securities into Common Stock, 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 or purchase by a fraction, fraction the numerator of which shall be the current market price per share (as defined for purposes of this paragraph (c) in subsection paragraph (e) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valueconclusive) of the portion of the capital stock or evidences of indebtedness, securities or assets Special Securities so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection paragraph (e) below) of Common Stock; provided, however, that in the event the then fair market value (as so determined) of the portion of the 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 mentioned above, in lieu of the 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 Holder would have received had such Holder converted such Securities immediately prior to the record datedate for the distribution of the Special Securities. Such adjustment shall become effective immediately immediately, except as provided in paragraph (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company If, pursuant to paragraph (b) or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock shall have been adjusted because Ventas, Inc. has declared a dividend, or made a distribution, on the outstanding before such repurchase and the number of shares of Common Stock in the subject form of any right or warrant to purchase securities of Ventas, Inc., or Ventas, Inc. has issued any such repurchaseright or warrant, and then, upon the denominator expiration of which 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.
(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 in subsection (e) below) commencing 45 Trading Days before the date in question. For the purpose of any computation under paragraph (c) 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 10 consecutive Trading Days before the date of such repurchasein question. Such adjustment shall become effective immediately after the date of such repurchase. For The reported last sales price for each day (whether for purposes of this subsection (d), the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for allparagraph
Appears in 1 contract
Samples: Indenture (Ventas Inc)
Adjustment of Conversion Price. The conversion price per share of Common Stock as stated in paragraph 6 of the Securities (the "“Conversion Price"”) shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case If the Company shall (i) pay a dividend or other distribution in issues solely shares of Common Stock to holders as a dividend or distribution on all or substantially all of the shares of Common Stock, (ii) subdivide its or if the Company subdivides or combines the outstanding Common Stock into a greater number shares of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the applicable Conversion Price in effect immediately prior thereto shall will be adjusted so that based on the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying following formula: where CP0 = the Conversion Price in effect immediately prior to the open of business on the Ex-Dividend Date for such record dividend or distribution, or immediately prior to the open of business on the effective date by a fractionof such subdivision or combination of Common Stock, as the numerator case may be; CP = the Conversion Price in effect immediately after the open of which shall be business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such record datedividend or distribution, plus or immediately prior to the number open of shares which business on the aggregate subscription effective date of such subdivision or purchase price for the total number of shares combination of Common Stock offered by Stock, as the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, case may be; and the denominator of which shall be OS = the number of shares of Common Stock outstanding on immediately after such record dividend or distribution, or immediately after the effective date plus the number of additional shares such subdivision or combination of Common Stock offered by such rightsStock, warrants or options (or into which as the convertible securities so offered by such rights, warrants or options are convertible)case may be. Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after the opening of business on the Ex-Dividend Date for such record datedividend or distribution, or the effective date for such subdivision or combination of Common Stock. If at the end any dividend or distribution of the period during which such rightstype described in this Section 6.06(a) is declared but not so paid or made, warrants or options the outstanding shares of Common Stock are exercisable not all rightssplit or combined, warrants or options shall have been exercisedas the case may be, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application readjusted, effective as of the foregoing adjustment substituting date the number Board of additional Directors determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares of Common Stock actually issued (Stock, as the case may be, to the Conversion Price that would then be in effect if such dividend, distribution, subdivision or the number of shares combination of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (had not been declared or the convertible securities offered)announced.
(cb) In case If the Company shall distribute distributes to all or substantially all holders of its Common Stock any shares of capital stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, options or warrants or options entitling them for a period of not more than 60 calendar days from the record date for such distribution to subscribe for or purchase any shares of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within (or securities convertible into Common Stock), at a price per share (or a conversion price per share) less than the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as average of the record date Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution), then in each such case the Conversion Price shall be adjusted so that decreased based on the same shall equal the price determined by multiplying following formula: where CP0 = the Conversion Price in effect immediately prior to the date open of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock business on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date Ex-Dividend Date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying ; CP = the Conversion Price in effect immediately prior to after the date open of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock business on the date of Ex-Dividend Date for such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between distribution; OS0 = the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock that are outstanding immediately prior to the open of business on the date of Ex-Dividend Date for such repurchase. Such adjustment shall become effective immediately 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 alldistribution;
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) For the purpose of any computation under subsections (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 event requiring such computation. The "Closing Price" with respect to the Common Stock for any day shall mean the closing sale price, regular way, per share of Common Stock on such day or, in case no such sale of Common Stock takes place on such day, the average of the reported closing bid and asked prices, regular way, per share of Common Stock in each case on the Nasdaq Stock Market or principal national security exchange or other quotation system on which the Common Stock is quoted or listed or admitted to trading on such day, or, if the Common Stock is not so quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices per share of Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or, if such average is not so available, determined in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or if not so determinable as provided under any applicable alternative above, a price per share of Common Stock determined in good faith by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive. As used herein the term "Trading Day" with respect to Common Stock means (i) if the Common Stock is listed or admitted for trading on any national securities exchange, a day on which such national securities exchange is open for business (ii) if the Common Stock is quoted on The Nasdaq Stock Market or any similar system of automated dissemination of quotations of securities prices, a day on which trades may be made on such system or (iii) if the Common Stock is not so listed or submitted for trading or quoted, any Business Day.
Appears in 1 contract
Samples: Indenture (Waste Connections Inc/De)
Adjustment of Conversion Price. The Unless otherwise specified as contemplated by Section 2.02 for Securities of that series, the conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and for Securities convertible into Common Stock shall be adjusted from time to time by the Company as follows:
(a) In case the Company Ventas, Inc. shall (i1) pay a dividend or other make a distribution on Common Stock in shares of Common Stock to holders of Common Stock, (ii2) subdivide its the outstanding Common Stock into a greater number of shares, shares or (iii3) combine its the outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto conversion price for the Securities of that series shall be adjusted so that the Holder of any such Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive after the happening of any of the events described above had such Security been converted immediately prior to the happening record date in the case of such eventa dividend or distribution or the effective date in the case of subdivision or combination. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Ventas, Inc. shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than expiring within 45 days after the record date described below and expiring not more than 45 days after such record datementioned below) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined defined for purposes of this paragraph (b) in accordance with subsection paragraph (e) below) ), at the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the Conversion Price 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, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered by receivable upon exercise of such rights, warrants rights or options (or into which the convertible securities so offered by such rights, warrants or options are convertible)warrants. Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately immediately, except as provided in paragraph (h) below, after such record date. If at In determining whether any rights or warrants entitle the end Holders of the period during which such rights, warrants Securities of that series to subscribe for 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 purchase shares of Common Stock actually issued (or at less than such current market price, and in determining the number aggregate offering price of such shares of Common Stock issuable upon conversion Stock, there shall be taken into account any consideration received by Ventas, Inc. for such rights or warrants plus the exercise price thereof, the value of convertible securities actually issued) for such consideration or exercise price, as the total number case may be, if other than cash, to be determined by the Board of shares of Common Stock offered (or the convertible securities offered)Directors.
(c) In case the Company Ventas, Inc. shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company Ventas, Inc. (other than Common Stock) or evidences of its indebtednessindebtedness or assets (excluding cash dividends or distributions paid from retained earnings of Ventas, cash, other securities Inc.) or other assets, rights or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and those rights or warrants referred to in subsection paragraph (b) above or above) (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliatesthe foregoing being herein in this paragraph (c) called the “Special Securities”), then, in each such case, unless Ventas, Inc. elects to reserve such Special Securities for distribution to the 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 concluded within to which such Holder is entitled, the preceding 12 monthsamount and kind of Special Securities which such Holder would have received if such Holder had, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of immediately prior to the record date for such distribution)the distribution of the Special Securities, then in each such case converted Securities into Common Stock, 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 or purchase by a fraction, fraction the numerator of which shall be the current market price per share (as defined for purposes of this paragraph (c) in subsection paragraph (e) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valueconclusive) of the portion of the capital stock or evidences of indebtedness, securities or assets Special Securities so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection paragraph (e) below) of Common Stock; provided, however that in the event the then fair market value (as so determined) of the portion of the 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 mentioned above, in lieu of the 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 Holder would have received had such Holder converted such Securities immediately prior to the record datedate for the distribution of the Special Securities. Such adjustment shall become effective immediately immediately, except as provided in paragraph (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company If, pursuant to paragraph (b) or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock shall have been adjusted because Ventas, Inc. has declared a dividend, or made a distribution, on the outstanding before such repurchase and the number of shares of Common Stock in the subject form of any right or warrant to purchase securities of Ventas, Inc., or Ventas, Inc. has issued any such repurchaseright or warrant, and then, upon the denominator expiration of which 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.
(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 in subsection (e) below) commencing 45 Trading Days before the date in question. For the purpose of any computation under paragraph (c) 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 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, regular way, or, in 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 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 Common Stock means (1) if the Common Stock is listed or admitted for trading on the date 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 Article 12 (other than this paragraph (f)) not later than such time as may be required in order to preserve the tax free nature of a distribution to the holders of Common Stock. All calculations under this Article 12 shall be made to the nearest cent or to the nearest 1/100 of a share, 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 conversion price is adjusted, as herein provided, Ventas, Inc. shall promptly file with the Trustee, at the corporate trust office of the Trustee, and with the office or agency maintained by Ventas, Inc. for the conversion of Securities of that series pursuant to Section 4.02, 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 repurchaseadjustment. Such Neither the Trustee nor any conversion agent shall be under any duty or responsibility with respect to any such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Holder of 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.
(h) In any case in which this Section 12.05 provides that an adjustment shall become effective immediately after a record date for an event, Ventas, Inc. may defer until the date occurrence of such repurchase. For purposes event (1) issuing to the Holder of this subsection (d), any Security of that series converted after such record date and before the "Aggregate Market Premium" is occurrence of such event the excess, if any, additional shares of the aggregate repurchase price paid for allCommon 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 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock or other Capital Stock to all holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately (whether or not it was then convertible) prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bSection 10.06(b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (aSection 10.06(a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distributioncash), 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock Capital Stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable applicable, to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on such record date; 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 Common Stock issuable upon such conversion, the distribution such Holder would have received had such Holder converted its Security immediately prior to the record date for such distribution. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for such Common Stock, Stock and (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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 paragraph (d) within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 10.06 previously has been made, exceeds 105% of Common Stock Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) In case someone other than the Company or one of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock in which, as of the closing date of the offer, the Company's Board of Directors is not recommending rejection of the offer, the Conversion Price will be adjusted as provided in subsection (d) above. The adjustment referred to in this clause will only be made if:
(i) the tender offer or exchange offer is for an amount that increases the offeror's ownership of common stock to more than 50% of the aggregate ordinary voting power represented by the Company's issued and outstanding Voting Stock; and
(ii) cash and the value of any other consideration included in the payment per share of Common Stock exceeds the current market price per share of Common Stock on the Business Day next succeeding the last date on which tenders or exchanges may be made pursuant to the tender or exchange offer. However, the adjustment referred to in this subsection (e) will not be made if as of the closing of the offer, the offering documents disclose a plan or an intention to cause the Company to engage in a consolidation or merger of the Company or a sale of all or substantially all of the Company's assets.
Appears in 1 contract
Samples: Indenture (Yellow Corp)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate.
(b) In case the Company shall issue to all or substantially all holders of (1) subdivide its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus subdivision or combination and the denominator shall be the number of shares which outstanding immediately after giving effect to such subdivision or combination. An adjustment made pursuant to this subsection (b) shall become effective immediately, except as provided in subsections (i) and (j) below, after the aggregate subscription effective date of a subdivision or combination.
(c) In case the Company shall issue rights, options or warrants to all or substantially all holders of Common Stock entitling them to subscribe for or purchase price for the total number of shares of Common Stock offered by at a price per share less than the rights, warrants or options so issued (or the aggregate conversion then current market price per share of the convertible securities offered by Common Stock (as determined pursuant to subsection (g) below) on the record date fixed for determination of the stockholders entitled to receive such rights, warrants option or options) would purchase at warrants, the Conversion Price in effect immediately following such current market record date shall be adjusted to a price, and computed to the denominator nearest cent, so that the same shall equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (c) are issuedonly exercisable upon the occurrence of certain triggering events, and shall become effective immediately after such record date. If at then the end of 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 will not 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 adjusted as provided in this subsection (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issuedc) for the total number of shares of Common Stock offered (or the convertible securities offered)until such triggering events occur.
(cd) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its Common Stock any shares assets, evidences of capital stock of the Company indebtedness, cash or securities (other than Common Stock(x) dividends or evidences of its indebtedness, distributions exclusively in cash, other securities (y) any dividend or other assets, or shall distribute distribution for which an adjustment is required to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to be made in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in accordance with subsection (a) or (c) above; and , or (iiiz) dividends and distributions paid in cash in an aggregate amount that, combined together with any distribution of rights or warrants subject to subsection (Al) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (Bbelow) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price in effect immediately following the record date fixed for the determination of the stockholders entitled to such distribution shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value (determined as provided in subsection (g) below) on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(de) In case the Company or any Subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with subsection (d) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all or substantially all holders of Common StockStock in an aggregate amount that, and the fair market value of the sum of combined together with (i) the aggregate consideration paid for all other such Common Stock, (ii) the aggregate fair market value of all-cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid made within the twelve (12) then preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously subsection (e) has been made, made and (iiiii) any cash and the aggregate fair market value of other consideration paid or payable in respect of any amounts previously paid tender or exchange offer by the Company or any of its Subsidiaries for the repurchase of Common Stock of a type described in this paragraph (d) concluded within the twelve (12) preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 1015% of Market Capitalization 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 (g) below) times the number of shares of Common Stock then outstanding) on the record date offixed for the determination of the stockholders entitled to such distribution, and after giving effect to, in each such repurchase, then case the Conversion Price immediately following such record date shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share of the Common Stock on such record date less the amount of the cash and/or fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of other consideration 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 subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(f) In case the Company or any Subsidiary of the Company shall complete a tender or exchange offer 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 tender or exchange offer, as of the expiration of such other tender or exchange offer, expiring within the 12 months preceding the expiration of such Offer and in respect of which no Conversion Price adjustment pursuant to this subsection (f) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (e) 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 (e) has been made, exceeds 15% of the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Time times the number of shares of Common Stock outstanding before (including any tendered shares) on the Expiration Time, the Conversion Price in effect immediately following such repurchase and the number of shares of Common Stock the subject of Expiration Time shall be reduced by multiplying such repurchase, and the denominator Conversion Price by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date 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 65 73 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 repurchase. Such adjustment shall 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 after prior to the date opening of such repurchasebusiness on the day following the Expiration Time. For purposes of this subsection (f), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(g) For the purpose of any computation under subsections (c), (d), (e) and (f) 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 "Aggregate '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 13.3, 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 or the Nasdaq Stock Market's National Market Premium" if the Common Stock is listed or admitted to trading thereon) without the excessright to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b), (c), (d), (e) and (f) above, the Company from time to time and to the extent permitted by applicable Law, shall be permitted to reduce the Conversion Price by any amount for any period of at least 20 Business Days, in which case the Company shall give at least 15 days notice of such reduction, if any, the Board of Directors has made a determination that such reduction would be in the best interests of the aggregate repurchase price paid Company, which determination shall be conclusive. The Company, at its option, shall be permitted to make such other reductions in the Conversion Price, in addition to those set forth above in subsections (a), (b), (c), (d), (e), (f) and the first sentence of this subsection (h), as the Board of Directors deems advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such a dividend or distribution for allUnited States federal income tax purposes.
(i) In any case in which this Section 13.5 shall require that an adjustment 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 66 74 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 of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the 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 appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company 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 XIII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(k) 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.
(l) In the event that the Company distributes rights or warrants (other than those referred to in subsection (c) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Note surrendered for conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of 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 or warrants of separate certificates evidencing such rights or warrants (the "Distribution Date"), the same number of rights or warrants to which a holder of a number of shares of 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 or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Note so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 alland
Appears in 1 contract
Samples: Indenture (Waste Connections Inc/De)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other in shares of Common Stock to all holders of Common Stock, (ii) make a distribution in shares of Common Stock to all holders of Common Stock, (iiiii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) belowof this Section 4.6) at the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price Conversion Price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any company other than the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in subsection (b) of this Section 4.6) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.6, make proper provision so that each holder of a Security who converts 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 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 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 Common Stock into which the principal amount of the 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 distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common StockStock cash in an aggregate amount that, and the fair market value of the sum of (i) together with the aggregate consideration paid for such amount of all cash distributions to all or substantially all holders of its 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 stock made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on such date of(excluding shares held in the Treasury of the Company), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase Determination Date by a fraction, fraction of which the numerator of which shall be the current market price per share of the Common Stock (as defined determined in accordance with subsection (e) belowof this Section 4.6) on the Determination Date less the amount of cash (plus the fair market value of such other consideration) so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the date basis of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and on the number of shares of Common Stock the subject of such repurchase, Determination Date) and the denominator of which shall be such current market price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(e) For the purpose of any computation under subsections (b), (c) and (d) of this Section 4.6, the current market price per share (as defined in subsection (e) below) of the Common Stock on any date shall be deemed to be the date average of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this daily closing prices for the 30 consecutive Trading Days commencing 45 Trading Days before (1) the Determination Date with respect to distributions under subsection (d)) of this Section 4.6 or (ii) the record date with respect to distributions, the "Aggregate Market Premium" is the excess, if any, issuances or other events requiring such computation under subsection (b) or (c) of the aggregate repurchase price paid for allthis Section 4.
Appears in 1 contract
Samples: Indenture (Commonwealth Telephone Enterprises Inc /New/)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 Price with respect to Convertible Securities of the form of Security attached hereto as Exhibit A and a series shall be adjusted from time to time by as follows with respect to events that take place after the Company as followsinitial issuance of any Securities of such series:
(a1) In case if the Company shall (i) pay a dividend or other make a distribution in shares of Common Stock to holders of on the Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify issue by reclassification of its outstanding Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior thereto shall be adjusted deemed to be proportionately adjusted, so that the any Holder of any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which it he would have owned or have been entitled to receive immediately following such action had such Convertible Security been converted immediately prior thereto. 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 happening of such eventconsideration to be received. An adjustment made pursuant to this subsection (a1) shall become effective immediately immediately, except as provided in subsection (6) 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, combination or reclassification.
(b2) In case the Company shall issue generally to all or substantially all holders of its Common Stock, Stock rights, options or warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (e5) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, options or warrants by a fraction, of which
(i) the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record daterights, plus options or warrants, and (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(ii) the denominator of which shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record date plus rights, options or warrants, and (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any become effective immediately, except as provided in subsection (6) below, after the record date for the determination of holders entitled to receive such rights, warrants options or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c3) In case the Company shall distribute shall, by dividend or otherwise, distribute, to all or substantially all holders of its Common Stock any shares Stock, evidences of capital stock of indebtedness, equity securities (including equity interests in the Company (Company's Subsidiaries) other than Common Stock) or evidences of its indebtedness, cash, other securities or other assetsassets (other than cash dividends paid out of earned surplus of the Company or current net earnings as shown on the books of the Company and other than Extraordinary Cash Dividends, which are governed by the provisions of subsection (4) below), or shall distribute to all or substantially all holders of its Common Stock, Stock rights, options or warrants or options entitling such Holders to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a2) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which
(i) the numerator of which shall be the current market price per share (determined as defined provided in subsection (e5) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valuevalue and provided to the Trustee) of the portion of the capital stock or evidences assets, evidence of indebtedness, equity securities or assets other securities so distributed or of such subscription rights, options or warrants or options, in each case as applicable to one share of Common Stock, and of which
(ii) the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsection (6) below, after the record date for the determination of stockholders entitled to receive such distribution.
. Notwithstanding the foregoing, with respect to the rights (d"Rights") In case distributed under the Rights Agreement, dated as of June 4, 1989, between the Company and BankBoston, N.A. as amended and as it may be further amended after the date hereof and/or in the event that and each time that the Company shall distribute any other rights or any warrants (other than those referred to in paragraph (2) of its Subsidiaries shall repurchase this Section) (including by way of tender offer"Additional Rights") shares pro rata to holders of Common Stock, the Company shall make proper provision so that each Holder of a Convertible Security who converts such Convertible Security (or any portion thereof) (A) after the date hereof in the case of Rights and (B) after the record date for any such distribution in the case of Additional Rights, and prior to the expiration or redemption of the Rights or Additional Rights, as the case may be, shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights or Additional 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 or Additional Rights of separate certificates evidencing such Rights or Additional Rights (the "Distribution Date"), the same number of Rights or Additional Rights to which a holder of a number of shares of 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 or Additional Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights or Additional Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the term and provisions of and applicable to the Rights or Additional Rights. If, with respect to any distribution to which this paragraph (3) would otherwise apply, the fair market value of the sum portion of (i) the aggregate consideration paid for assets so distributed applicable to one share of Common Stock exceeds the current market price per share of Common Stock or the current market price per share of Common Stock exceeds such Common Stock, (ii) the aggregate fair market value by less than $1.00, then the adjustment provided by this subsection (3) shall not be made and in lieu thereof the provision of cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c8) shall apply to such distribution.
(4) paid within If the twelve (12) months preceding the date Company shall, by dividend or otherwise, distribute generally to holders of purchase of such shares of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 4.05 applies) in respect of which no adjustment pursuant to this Section 4.6 previously has been madean aggregate amount such that such dividend or distribution shall constitute an Extraordinary Cash Dividend, then, and (iii) in each such case, immediately after the aggregate fair market value close of any amounts previously paid business on such date for the repurchase of Common Stock of a type described in this 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 4.6 previously has been madedetermination, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced 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 date fixed for determination of the stockholders entitled to receive such distribution or purchase by a fraction, of which
(i) the numerator of which shall be equal to (A) the current market price per share (determined as defined provided in subsection paragraph (e5) belowof this Section) of the Common Stock on the date fixed for such determination less (B) an amount equal to the excess of such repurchaseExtraordinary Cash Dividend over four times the per share amount of the Company's most recently declared regular quarterly dividend and of which
(ii) the denominator shall be equal to such market price per share.
(5) For the purpose of any computation under subsections (2), less (3) or (4) above, the quotient obtained by dividing current market price per share of Common Stock on any date shall be deemed to be the Aggregate Market Premium involved average of the Sale Prices for the 20 consecutive Trading Days commencing 30 Trading Days before the date in question.
(6) In any case in which this Section 4.04 shall require that an adjustment of the Conversion Price be made effective immediately following a record date, the Company may elect to defer the effectiveness of such repurchase adjustment (as defined hereinafterbut 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 Convertible Security converted after such record date and before such adjustment shall have become effective, (i) by defer paying any cash payment pursuant to Section 4.03 or issuing to the difference between Holder of such Convertible Security the number of shares of Common Stock outstanding before and other capital stock of the Company issuable upon such repurchase and conversion in excess of the number of shares of Common Stock and other capital stock of the subject Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii) not later than five Business Days after such repurchaseadjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 4.03 and issue to such Holder the denominator additional shares of which Common Stock and other capital stock of the Company issuable on such conversion.
(7) No adjustment of the Conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least one percent of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Conversion Price; provided, however, that any adjustments which by reason of this subsection (d7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and, provided, further, that each adjustment shall be required and made in accordance with the provisions of this Article Four (other than this subsection (7)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Convertible Securities or Common Stock. All calculations under this Article Four shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(8) If the Company makes a distribution to holders of its Common Stock of any of its assets, or debt securities or any rights, warrants or options to purchase securities of the Company that, but for the provisions of the last sentence of subsection (3), would otherwise result in an adjustment in the "Aggregate Market Premium" Conversion Rate, then, from and after the record date for determining the holders of Common Stock entitled to receive the distribution, a Holder of a Convertible Security that converts such Convertible Security in accordance with the provisions of this Indenture shall upon such conversion be entitled to receive, in addition to the shares of Common Stock into which the Convertible Security is convertible, the excesskind and amount of securities, cash or other assets comprising the distribution that such Holder would have received if anysuch Holder had converted the Convertible Security immediately prior to the record date for determining the holders of Common Stock entitled to receive the distribution.
(9) Whenever the Conversion Price shall be 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 in reasonable detail the facts requiring such adjustment and the manner of computing the aggregate repurchase price paid for allsame, and (ii) mail or cause to be mailed a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price to each Holder of Convertible Securities at his address as the same appears on the Security Register. Anything in this Section 4.04 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 4.04, 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 the Company to its stockholders shall not be taxable.
Appears in 1 contract
Samples: Senior Debt Indenture (Hasbro Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 Price with respect to Convertible Securities of the form of Security attached hereto as Exhibit A and a series shall be adjusted from time to time by as follows with respect to events that take place after the Company as followsinitial issuance of any Securities of such series:
(a1) In case if the Company shall (i) pay a dividend or other make a distribution in shares of Common Stock to holders of on the Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify issue by reclassification of its outstanding Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior thereto shall be adjusted deemed to be proportionately adjusted, so that the any Holder of any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which it he would have owned or have been entitled to receive immediately following such action had such Convertible Security been converted immediately prior thereto. 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 happening of such eventconsideration to be received. An adjustment made pursuant to this subsection (a1) shall become effective immediately immediately, except as provided in subsection (6) 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, combination or reclassification.
(b2) In case the Company shall issue generally to all or substantially all holders of its Common Stock, Stock rights, options or warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (e5) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, options or warrants by a fraction, of which
(i) the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record daterights, plus options or warrants, and (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(ii) the denominator of which shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record date plus rights, options or warrants, and (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any become effective immediately, except as provided in subsection (6) below, after the record date for the determination of holders entitled to receive such rights, warrants options or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c3) In case the Company shall distribute shall, by dividend or otherwise, distribute, to all or substantially all holders of its Common Stock any shares Stock, evidences of capital stock of indebtedness, equity securities (including equity interests in the Company (Company's Subsidiaries) other than Common Stock) or evidences of its indebtedness, cash, other securities or other assetsassets (other than cash dividends paid out of earned surplus of the Company or current net earnings as shown on the books of the Company and other than Extraordinary Cash Dividends, which are governed by the provisions of subsection (4) below), or shall distribute to all or substantially all holders of its Common Stock, Stock rights, options or warrants or options entitling such Holders to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a2) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which
(i) the numerator of which shall be the current market price per share (determined as defined provided in subsection (e5) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valuevalue and provided to the Trustee) of the portion of the capital stock or evidences assets, evidence of indebtedness, equity securities or assets other securities so distributed or of such subscription rights, options or warrants or options, in each case as applicable to one share of Common Stock, and of which
(ii) the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsection (6) below, after the record date for the determination of stockholders entitled to receive such distribution.
. Notwithstanding the foregoing, with respect to the rights (d"Rights") In case distributed under the Rights Agreement, dated as of June 4, 1989, between the Company and BankBoston, N.A. as amended and as it may be further amended after the date hereof and/or in the event that and each time that the Company shall distribute any other rights or any warrants (other than those referred to in paragraph (2) of its Subsidiaries shall repurchase this Section) (including by way of tender offer"Additional Rights") shares pro rata to holders of Common Stock, the Company shall make proper provision so that each Holder of a Convertible Security who converts such Convertible Security (or any portion thereof) (A) after the date hereof in the case of Rights and (B) after the record date for any such distribution in the case of Additional Rights, and prior to the expiration or redemption of the Rights or Additional Rights, as the case may be, shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights or Additional 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 or Additional Rights of separate certificates evidencing such Rights or Additional Rights (the "Distribution Date"), the same number of Rights or Additional Rights to which a holder of a number of shares of 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 or Additional Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights or Additional Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the term and provisions of and applicable to the Rights or Additional Rights. If, with respect to any distribution to which this paragraph (3) would otherwise apply, the fair market value of the sum portion of (i) the aggregate consideration paid for assets so distributed applicable to one share of Common Stock exceeds the current market price per share of Common Stock or the current market price per share of Common Stock exceeds such Common Stock, (ii) the aggregate fair market value by less than $1.00, then the adjustment provided by this subsection (3) shall not be made and in lieu thereof the provision of cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c8) shall apply to such distribution.
(4) paid within If the twelve (12) months preceding the date Company shall, by dividend or otherwise, distribute generally to holders of purchase of such shares of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 4.05 applies) in respect of which no adjustment pursuant to this Section 4.6 previously has been madean aggregate amount such that such dividend or distribution shall constitute an Extraordinary Cash Dividend, then, and (iii) in each such case, immediately after the aggregate fair market value close of any amounts previously paid business on such date for the repurchase of Common Stock of a type described in this 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 4.6 previously has been madedetermination, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced 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 date fixed for determination of the stockholders entitled to receive such distribution or purchase by a fraction, of which
(i) the numerator of which shall be equal to (A) the current market price per share (determined as defined provided in subsection paragraph (e5) belowof this Section) of the Common Stock on the date fixed for such determination less (B) an amount equal to the excess of such repurchaseExtraordinary Cash Dividend over four times the per share amount of the Company's most recently declared regular quarterly dividend and of which
(ii) the denominator shall be equal to such market price per share.
(5) For the purpose of any computation under subsections (2), less (3) or (4) above, the quotient obtained by dividing current market price per share of Common Stock on any date shall be deemed to be the Aggregate Market Premium involved average of the Sale Prices for the 20 consecutive Trading Days commencing 30 Trading Days before the date in question.
(6) In any case in which this Section 4.04 shall require that an adjustment of the Conversion Price be made effective immediately following a record date, the Company may elect to defer the effectiveness of such repurchase adjustment (as defined hereinafterbut 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 Convertible Security converted after such record date and before such adjustment shall have become effective, (i) by defer paying any cash payment pursuant to Section 4.03 or issuing to the difference between Holder of such Convertible Security the number of shares of Common Stock outstanding before and other capital stock of the Company issuable upon such repurchase and conversion in excess of the number of shares of Common Stock and other capital stock of the subject Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii) not later than five Business Days after such repurchaseadjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 4.03 and issue to such Holder the denominator additional shares of which Common Stock and other capital stock of the Company issuable on such conversion.
(7) No adjustment of the Conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least one percent of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Conversion Price; provided, however, that any adjustments which by reason of this subsection (d7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and, provided, further, that each adjustment shall be required and made in accordance with the provisions of this Article Four (other than this subsection (7)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Convertible Securities or Common Stock. All calculations under this Article Four shall be made to the nearest cent or to the nearest one- hundredth of a share, as the case may be.
(8) If the Company makes a distribution to holders of its Common Stock of any of its assets, or debt securities or any rights, warrants or options to purchase securities of the Company that, but for the provisions of the last sentence of subsection (3), would otherwise result in an adjustment in the "Aggregate Market Premium" Conversion Rate, then, from and after the record date for determining the holders of Common Stock entitled to receive the distribution, a Holder of a Convertible Security that converts such Convertible Security in accordance with the provisions of this Indenture shall upon such conversion be entitled to receive, in addition to the shares of Common Stock into which the Convertible Security is convertible, the excesskind and amount of securities, cash or other assets comprising the distribution that such Holder would have received if anysuch Holder had converted the Convertible Security immediately prior to the record date for determining the holders of Common Stock entitled to receive the distribution.
(9) Whenever the Conversion Price shall be 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 in reasonable detail the facts requiring such adjustment and the manner of computing the aggregate repurchase price paid for allsame, and (ii) mail or cause to be mailed a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price to each Holder of Convertible Securities at his address as the same appears on the Security Register. Anything in this Section 4.04 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 4.04, 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 the Company to its stockholders shall not be taxable.
Appears in 1 contract
Samples: Senior Debt Indenture (Hasbro Inc)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") for a Series of Securities shall be that price as set forth in paragraph 8 a resolution of the Board of Directors, Officers' Certificate or executed supplemental indenture referred to in Sections
2.1 and 2.3 by or pursuant to which the form and terms of Security attached hereto as Exhibit A the Securities of such Series were established, and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of on the Common Stock, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii3) combine its outstanding shares of Common Stock into a smaller number of shares or (iv4) reclassify issue by reclassification of its outstanding Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which it he or she would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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, combination or 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 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 Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ed) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, of which (i) the numerator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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 of which shall be (A) the number of shares of 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 Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately immediately, except as provided in subsection (e) below, after such the record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) date for the total number determination of shares of Common Stock offered (holders entitled to receive such rights or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares Stock, evidences of capital stock of the Company (indebtedness, equity securities other than Common Stock) or evidences of its indebtedness, cash, other securities or other assetsassets (other than cash dividends paid out of surplus of the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (fabove) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ed) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (of the Common Stock. Such adjustment shall become effective immediately, except as defined provided in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately , after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case For the Company or purpose of any of its Subsidiaries shall repurchase computation under subsections (including by way of tender offerb) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined of Common Stock on any date shall be deemed to be the average of the Last Sale Prices for the 30 consecutive Trading Days commencing 45 Trading Days before the date in subsection question.
(e) below) In any case in which this Section 14.4 shall require that an adjustment 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 Common Stock on event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 14.3 or issuing to the Holder of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Security the number of shares of Common Stock outstanding before and other capital stock of the Company issuable upon such repurchase and conversion in excess of the number of shares of Common Stock and other capital stock of the subject Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days after such repurchaseadjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 14.3 and issue to such Holder the denominator additional shares of which Common Stock and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least 1% of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Conversion Price; provided, that any adjustments which by reason of this subsection (df) 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 Article XIV (other than this subsection (f)) 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 Article XIV shall be made to the nearest cent or to the nearest one- hundredth of a share, as the case may be.
(g) Anything in this Section 14.4 to the contrary notwithstanding, no adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for rights to purchase capital stock pursuant to any future dividend or distribution which the Company determines to be comparable in purpose and in effect to the dividend and subsequent distribution of Rights or Additional Rights contemplated by the Rights Agreement or Additional Rights Agreement and no adjustment need be made for a change in the par value or no par value of the Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the "Aggregate Market Premium" is Company shall promptly (i) file with the excess, if any, Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the aggregate repurchase price paid for allfacts 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 either the registry books of the Company or in the filings described in Section 4.1. Anything in this Section 14.4 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 14.4, 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 the Company to its stockholders shall not be taxable.
Appears in 1 contract
Samples: Indenture (Dean Foods Co)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Common Capital Stock, (ii2) subdivide its outstanding Common shares of Capital Stock into a greater number of shares, shares or (iii3) combine its outstanding Common shares of Capital Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivisiona subdivision or combination. If after an adjustment a holder upon conversion of the Capital Stock may receive shares of two or more classes of Capital Stock of the Company, combination or reclassificationthe Company shall determine the allocation of the adjusted Conversion Price between the classes of Capital Stock. After such allocation, the conversion privilege and Conversion Price of each class of Capital Stock shall thereafter be subject to adjustment on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Capital Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Capital Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined pursuant to subsection (d) below) of the Capital Stock on the record date mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, in accordance with the following formula: N x P ----- AP = CP x 0 + M -------- 0 + N where: AP = the adjusted Conversion Price. CP = the current Conversion Price. O = the number of shares of Capital Stock outstanding on the record date for the distribution. N = the number of additional shares of Capital Stock offered. P = the offering price per share of the additional shares. M = the current market price per share of Capital Stock on the record date. Such adjustment shall become effective immediately, except as provided in subsection (e) below) at , after the record date for the determination of stockholders holders entitled to receive such rights, warrants rights or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Capital Stock, evidences of indebtedness, equity securities other than Capital Stock any shares of capital stock of the Company or other assets (other than Common Stock) or evidences of its indebtedness, cash, other securities cash dividends or other assetsdistributions to the extent paid from current or retained earnings of the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Capital Stock rights or warrants or options to subscribe for or purchase any of its to securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that in accordance with the same shall equal following formula: AP = CP x M - F ------- M where: AP = the price determined by multiplying adjusted Conversion Price. CP = the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, the numerator of which shall be Price. M = the current market price per share (of Capital Stock on the record date mentioned below. F = the fair market value on the record date of the assets, securities, rights or warrants applicable to one share of Capital Stock, as defined determined by the Company. Such adjustment shall become effective immediately, except as provided in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case For the Company or purpose of any of its Subsidiaries shall repurchase computation under subsections (including by way of tender offerb) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (of Capital Stock on any date shall be deemed to be the average of the closing price of the Capital Stock reported by the New York Stock Exchange consolidated transaction reporting system for the 30 consecutive trading days commencing 45 trading days before the date of determination. In the absence of one or more such quotations, the Company shall determine the current market price on the basis of such quotations as defined in subsection it considers appropriate.
(e) below) In any case in which this Section shall require that an adjustment 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 Common Stock on event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective (i) defer paying any cash payment pursuant to Section 15.04 or issuing to the holder of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Security the number of shares of Common Capital Stock outstanding before and other capital stock of the Company issuable upon such repurchase and conversion in excess of the number of shares of Common Capital Stock and other capital stock of the subject Company issuable thereupon only on the basis of such repurchasethe 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 denominator appropriate cash payment pursuant to Section 15.04 and issue to such holder the additional shares of which Capital Stock and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be the current market price per share (as defined required unless such adjustment would require an increase or decrease of at least 1% in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes price; provided, that any adjustments which by reason of this subsection (df) 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 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. Anything in this Section to the contrary notwithstanding the Company shall be entitled to make such adjustments in the Conversion Price, in addition to those required by this Section, and to make any election under Treasury Regulation (S)1.305-3(d)(2), 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 the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for allCompany to its stockholders shall not be taxable.
Appears in 1 contract
Samples: Indenture (Wells Fargo Capital Iii)
Adjustment of Conversion Price. The Unless otherwise specified as contemplated by Section 2.02 for Securities of that series, the conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and for Securities convertible into Common Stock shall be adjusted from time to time by the Company as follows:
(a) In case the Company Ventas, Inc. shall (i1) pay a dividend or other make a distribution on Common Stock in shares of Common Stock to holders of Common Stock, (ii2) subdivide its the outstanding Common Stock into a greater number of shares, shares or (iii3) combine its the outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto conversion price for the Securities of that series shall be adjusted so that the Holder of any such Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive after the happening of any of the events described above had such Security been converted immediately prior to the happening record date in the case of such eventa dividend or distribution or the effective date in the case of subdivision or combination. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Ventas, Inc. shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than expiring within 45 days after the record date described below and expiring not more than 45 days after such record datementioned below) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined defined for purposes of this paragraph (b) in accordance with subsection paragraph (e) below) ), at the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the Conversion Price 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, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered by receivable upon exercise of such rights, warrants rights or options (or into which the convertible securities so offered by such rights, warrants or options are convertible)warrants. Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately immediately, except as provided in paragraph (h) below, after such record date. If at In determining whether any rights or warrants entitle the end Holders of the period during which such rights, warrants Securities of that series to subscribe for 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 purchase shares of Common Stock actually issued (or at less than such current market price, and in determining the number aggregate offering price of such shares of Common Stock issuable upon conversion Stock, there shall be taken into account any consideration received by Ventas, Inc. for such rights or warrants plus the exercise price thereof, the value of convertible securities actually issued) for such consideration or exercise price, as the total number case may be, if other than cash, to be determined by the Board of shares of Common Stock offered (or the convertible securities offered)Directors.
(c) In case the Company Ventas, Inc. shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company Ventas, Inc. (other than Common Stock) or evidences of its indebtednessindebtedness or assets (excluding cash dividends or distributions paid from retained earnings of Ventas, cash, other securities Inc.) or other assets, rights or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and those rights or warrants referred to in subsection paragraph (b) above or above) (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliatesthe foregoing being herein in this paragraph (c) called the "Special Securities"), then, in each such case, unless Ventas, Inc. elects to reserve such Special Securities for distribution to the 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 concluded within to which such Holder is entitled, the preceding 12 monthsamount and kind of Special Securities which such Holder would have received if such Holder had, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of immediately prior to the record date for such distribution)the distribution of the Special Securities, then in each such case converted Securities into Common Stock, 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 or purchase by a fraction, fraction the numerator of which shall be the current market price per share (as defined for purposes of this paragraph (c) in subsection paragraph (e) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valueconclusive) of the portion of the capital stock or evidences of indebtedness, securities or assets Special Securities so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection paragraph (e) below) of Common Stock; provided, however, that in the event the then fair market value (as so determined) of the portion of the 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 mentioned above, in lieu of the 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 Holder would have received had such Holder converted such Securities immediately prior to the record datedate for the distribution of the Special Securities. Such adjustment shall become effective immediately immediately, except as provided in paragraph (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company If, pursuant to paragraph (b) or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock shall have been adjusted because Ventas, Inc. has declared a dividend, or made a distribution, on the outstanding before such repurchase and the number of shares of Common Stock in the subject form of any right or warrant to purchase securities of Ventas, Inc., or Ventas, Inc. has issued any such repurchaseright or warrant, and then, upon the denominator expiration of which 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.
(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 in subsection (e) below) commencing 45 Trading Days before the date in question. For the purpose of any computation under paragraph (c) 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 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, regular way, or, in 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 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 Common Stock means (1) if the Common Stock is listed or admitted for trading on the date 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 Article 12 (other than this paragraph (f)) not later than such time as may be required in order to preserve the tax free nature of a distribution to the holders of Common Stock. All calculations under this Article 12 shall be made to the nearest cent or to the nearest 1/100 of a share, 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 conversion price is adjusted, as herein provided, Ventas, Inc. shall promptly file with the Trustee, at the corporate trust office of the Trustee, and with the office or agency maintained by Ventas, Inc. for the conversion of Securities of that series pursuant to Section 4.02, 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 repurchaseadjustment. Such Neither the Trustee nor any conversion agent shall be under any duty or responsibility with respect to any such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Holder of 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.
(h) In any case in which this Section 12.05 provides that an adjustment shall become effective immediately after a record date for an event, Ventas, Inc. may defer until the date occurrence of such repurchase. For purposes event (1) issuing to the Holder of this subsection (d), any Security of that series converted after such record date and before the "Aggregate Market Premium" is occurrence of such event the excess, if any, additional shares of the aggregate repurchase price paid for allCommon 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 1 contract
Samples: Indenture (Brookdale Living Communitites of New York-Gb, LLC)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Common Capital Stock, (ii2) subdivide its outstanding Common shares of Capital Stock into a greater number of shares, shares or (iii3) combine its outstanding Common shares of Capital Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivisiona subdivision or combination. If after an adjustment a holder upon conversion of the Capital Stock may receive shares of two or more classes of Capital Stock of the Company, combination or reclassificationthe Company shall determine the allocation of the adjusted Conversion Price between the classes of Capital Stock. After such allocation, the conversion privilege and Conversion Price of each class of Capital Stock shall thereafter be subject to adjustment on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Capital Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Capital Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined pursuant to subsection (d) below) of the Capital Stock on the record date mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, in accordance with the following formula: N x P ----- AP = CP x O + M ---------------- O + N where: AP = the adjusted Conversion Price. CP = the current Conversion Price. O = the number of shares of Capital Stock outstanding on the record date for the distribution. N = the number of additional shares of Capital Stock offered. P = the offering price per share of the additional shares. M = the current market price per share of Capital Stock on the record date. Such adjustment shall become effective immediately, except as provided in subsection (e) below) at , after the record date for the determination of stockholders holders entitled to receive such rights, warrants rights or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Capital Stock, evidences of indebtedness, equity securities other than Capital Stock any shares of capital stock of the Company or other assets (other than Common Stock) or evidences of its indebtedness, cash, other securities cash dividends or other assetsdistributions to the extent paid from current or retained earnings of the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Capital Stock rights or warrants or options to subscribe for or purchase any of its to securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that in accordance with the same shall equal following formula: AP = CP x M - F ------------- M where: AP = the price determined by multiplying adjusted Conversion Price. CP = the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, the numerator of which shall be Price. M = the current market price per share (as defined in subsection (e) below) of the Common Capital Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") for a series of Convertible Securities shall be that price set forth in paragraph 8 a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section 3.01 by or pursuant to which the form and terms of the form Convertible Securities of Security attached hereto as Exhibit A such series were established, and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of on the Common Stock, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii3) combine its outstanding shares of Common Stock into a smaller number of shares or (iv4) reclassify issue by reclassification of its outstanding Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which it he would have owned or have been entitled to receive immediately following such action had such Convertible Security been converted immediately prior to the happening of such eventthereto. 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, combination or 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 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 class of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ed) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, of which (2) the numerator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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 (3) the denominator of which shall be (A) the number of shares of 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 Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately immediately, except as provided in subsection (e) below, after such the record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) date for the total number determination of shares of Common Stock offered (holders entitled to receive such rights or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares Stock, evidences of capital stock of indebtedness, equity securities (including equity interests in the Company (Company's Subsidiaries) other than Common Stock) or evidences of its indebtedness, cash, other securities or other assetsassets (other than cash dividends paid out of surplus of the Company or current net earnings as shown on the books of the Company unless such cash dividends are Extraordinary Cash Dividends), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (fabove) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ed) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (of the Common Stock. Such adjustment shall become effective immediately, except as defined provided in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately , after the record date for the determination of stockholders entitled to receive such distribution.
. Notwithstanding the foregoing, with respect to the rights (d"Rights") In case distributed under the Rights Agreement, dated as of June 4, 1989, between the Company and BankBoston, N.A. and/or in the event that and each time that the Company shall distribute any other rights or any warrants (other than those referred to in paragraph (b) of its Subsidiaries shall repurchase this Section) (including by way of tender offer"Additional Rights") shares pro rata to holders of Common Stock, the Company shall make proper provision so that each Holder of a Convertible Security who converts such Convertible Security (or any portion thereof) (A) after the date hereof in the case of Rights and (B) after the record date for any such distribution in the case of Additional Rights, and prior to the expiration or redemption of the Rights or Additional Rights, as the case may be, shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights or Additional 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 or Additional Rights of separate certificates evidencing such Rights or Additional Rights (the "Distribution Date"), the same number of Rights or Additional Rights to which a holder of a number of shares of 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 or Additional Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights or Additional Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the term and provisions of and applicable to the Rights or Additional Rights. In the event that, with respect to any distribution to which this paragraph (c) would otherwise apply, the fair market value of the sum portion of (i) the aggregate consideration paid for assets so distributed applicable to one share of common stock exceeds the current market price per share of Common Stock or the current market price per share of Common Stock exceeds such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of by less than $1.00, then the type described in clause (iii) of the preceding adjustment provided by this paragraph (c) paid within shall not be made and in lieu thereof the twelve provision of paragraph (12h) months preceding the date of purchase of shall apply to such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 paragraph distribution.
(d) within If the twelve (12) months preceding the date Company shall, by dividend or otherwise, distribute generally to holders of purchase of such shares of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 4.05 applies) in respect of which no adjustment pursuant to this Section 4.6 previously has been madean aggregate amount such that such dividend or distribution shall constitute an Extraordinary Cash Dividend, exceeds 10% of Market Capitalization on the date ofthen, and in each such case, immediately after giving effect tothe close of business on such date for determination, such repurchase, then the Conversion Price shall be adjusted reduced 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 date fixed for determination of the stockholders entitled to receive such distribution or purchase by a fraction, of which (1) the numerator of which shall be equal to (A) the current market price per share (determined as defined provided in subsection paragraph (e) belowof this Section) of the Common Stock on the date fixed for such determination less (B) an amount equal to the excess of such repurchaseExtraordinary Cash Dividend over four times the per share amount of the Company's most recently declared regular quarterly dividend and of which (2) the denominator shall be equal to such market price per share.
(e) For the purpose of any computation under subsections (b), less (c) and (d) above, the quotient obtained by dividing current market price per share of Common Stock on any date shall be deemed to be the Aggregate Market Premium involved average of the Last Sale Prices for the 20 consecutive Trading Days commencing 30 Trading Days before the date in question. (f) In any case in which this Section 4.04 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such repurchase adjustment (as defined hereinafterbut 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 Convertible Security converted after such record date and before such adjustment shall have become effective, (i) by defer paying any cash payment pursuant to Section 4.03 or issuing to the difference between Holder of such Convertible Security the number of shares of Common Stock outstanding before and other capital stock of the Company issuable upon such repurchase and conversion in excess of the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) other capital stock of the 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 appropriate cash payment pursuant to Section 4.03 and issue to such Holder the additional shares of Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market Premium" is the excess, if any, and other capital stock of the aggregate repurchase price paid for allCompany issuable on such conversion.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (applicable to the "Conversion Price") Debt Securities of any series shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company Unilever N.V. shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Common StockN.V. Shares in N.V. Shares, (ii2) subdivide its outstanding Common Stock N.V. Shares into a greater number of shares, (iii3) combine its outstanding Common Stock N.V. Shares into a smaller number of shares or (iv4) reclassify issue any shares by reclassification of its outstanding Common StockN.V. Shares, the Conversion Price conversion price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Debt Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock N.V. Shares which it he would have owned or have been entitled to receive immediately following such action had such Debt Security been converted immediately prior to the happening of such eventthereto. An Any 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Unilever N.V. shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options N.V. Shares entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) N.V. Shares at a price per share less than the current market price per share of Common Stock N.V. Share (as determined in accordance with pursuant to subsection (ed) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto conversion price shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price same shall equal the price determined by multiplying multiplying:
(1) 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
(2) the numerator of which shall be (A) the number of shares of Common Stock N.V. Shares outstanding on the date of issuance of such record daterights or warrants immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for (in United States dollars) of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price (determined 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
(3) the denominator of which shall be (A) the number of shares of Common Stock N.V. Shares 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 Common Stock offered by such rights, warrants or options (or into N.V. Shares which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such record daterights or warrants. If In determining whether any rights or warrants entitle the holders to subscribe for or purchase N.V. Shares at less than such current market price, and in determining the end aggregate offering price of the period during which such rightsN.V. Shares, warrants there shall be taken into account any consideration received by Unilever N.V. for such rights or options are exercisable not all rights, warrants or options shall have been exercisedwarrants, the adjusted Conversion Price shall value of such consideration, if other than cash, to be immediately readjusted to what it would have been upon application determined, in good faith, by the Board of the foregoing adjustment substituting the number Directors of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).Unilever N.V.
(c) In case the Company Unilever N.V. shall distribute to all or substantially all holders of its Common Stock any shares N.V. Shares evidences of capital stock of the Company indebtedness, equity securities other than N.V. Shares or other assets (other than Common Stock) cash dividends or evidences cash distributions payable out of its indebtedness, cash, other securities or other assetsretained earnings), or shall distribute to all or substantially all holders of its Common Stock, rights, N.V. Shares rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share N.V. Share (determined as defined provided in subsection (ed) below) of the Common Stock on the record date mentioned below less the then fair market value on such record date (in United States dollars) (as determined by the Board of Directors of the Company, Unilever N.V. whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valueconclusive) of the portion of the capital stock or evidences of indebtedness, equity securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share N.V. Share and of Common Stock, and which the denominator of which shall be the such current market price per share N.V. Share (determined as defined provided in subsection (d) below). Such adjustment shall become effective immediately, except as provided in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately , after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case For the Company or purpose of any of its Subsidiaries shall repurchase computation under subsections (including by way of tender offerb) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) N.V. Share at any date shall be deemed to be the average of the Common Stock daily Closing Prices on the 5 consecutive Trading Days commencing not more than 20 Trading Days before the date in question. The term “Closing Price” on any Trading Day shall mean (i) the last reported sales price per N.V. Share on such Trading Day on the New York Stock Exchange, or if not reported on such Exchange, on the Composite Tape, or, in case no such reported sale takes place on such Trading Day, the average of the reported closing bid and asked quotations on the New York Stock Exchange on such repurchaseTrading Day, less (ii) if the quotient obtained by dividing N.V. Shares are not listed or admitted for trading on the Aggregate Market Premium involved in New York Stock Exchange, the last reported sales price on such repurchase (other national securities exchange on which the N.V. Shares are admitted for trading as defined hereinafter) may be designated by the difference between Board of Directors of Unilever N.V. for the number of shares of Common Stock outstanding before such repurchase and purposes hereof, or (iii) if the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock N.V. Shares are not listed or admitted for trading on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d)any national securities exchange, the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for alllast reported sales or
Appears in 1 contract
Samples: Indenture (Unilever N V)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (e) belowof this Section 4.6) at on the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at such the current market priceprice per share (as defined in subsection (e) of this Section 4.6) of Common Stock on such record date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allhave
Appears in 1 contract
Samples: Indenture (Beyond Com Corp)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions subdivisions, combinations and combinations reclassifications referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers or exchange offers) by the Company or any of its Subsidiaries or AffiliatesSubsidiaries, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer or exchange offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) For the purpose of any computation under subsections (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 for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or other event requiring such computation. The Closing Price for each day shall be (i) the last sale price, or the average of the closing bid and asked prices if no sale occurred of such class of stock on the principal securities exchange on which such class of stock is listed, if the Common Stock is listed or admitted for trading on any national securities exchange, (ii) the last reported sale price of Common Stock on The Nasdaq Stock Market, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (i), the mean 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 5 of the 10 preceding days. If the 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 (iii) of the preceding sentence if bid and asked quotations are reported but actual transactions are not, and in the manner set forth in clause (ii) 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 last reported sale prices for any period shall be the fair market value of such class of stock 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 Common Stock means (i) if the Common Stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business or (ii) if the Common Stock is quoted on The Nasdaq Stock Market or any similar system of automated dissemination of quotations of securities prices, days on which trades may be made on such system.
(f) If the Company implements a Stockholder Rights Plan (as defined below), the Company agrees that such Stockholder Rights Plan will provide that upon any conversion of the Securities by any Holder prior to a Trigger Event (as defined below), the holders of the Common Stock into which the Securities have been converted shall receive the rights, warrants or options issued under such plan. Rights, warrants or options distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights, warrants or options, until the occurrence of a specified event or events (a "Trigger Event"):
(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 issuances of Common Stock,
(a " Stockholder Rights Plan") shall not be deemed distributed for purposes of this Section 4.6 and no adjustment to the Conversion Price shall be required to be made until the occurrence of the earliest Trigger Event. In addition, in the event of any Trigger Event with respect thereto, that shall have resulted in an adjustment to the Conversion Price under this Section 4.6, (1) in the case of any such rights, warrants or options which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights, warrants or options (assuming such holder had retained such rights, warrants or options), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of any such rights, warrants or options all of which shall have expired without exercise by any holder thereof, the Conversion Price shall be readjusted as if such issuance had not occurred. In any case in which this Section 4.6 shall require that an adjustment be made immediately following a record date established for purposes of Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.10) 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 (Nco Group Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security Note attached hereto as Exhibit EXHIBIT A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall shall
(i1) pay a dividend or other distribution in shares of Common Stock to holders of Common Stock, ,
(ii2) subdivide its outstanding Common Stock into a greater number of shares, ,
(iii3) combine its outstanding Common Stock into a smaller number of shares or shares, or
(iv4) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security Note been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, warrants or options to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) ), at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, Stock rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) those rights, warrants or options and warrants referred to in subsection (b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 4.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, or any employee benefit plan for the benefit of employees of the Company or any of its Subsidiaries or Affiliates (a "Company Benefit Plan"), of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.64.06, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights, warrants or options (other than those referred to in subsection (b) above) ("Rights") PRO RATA to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.06, make proper provision so that each Holder of a Note who converts 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 Conversion Shares, a number of Rights to be determined as follows: (x) 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 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 (y) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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. If the Company implements a new stockholder rights plan, the Company agrees that such rights plan will provide that upon conversion of the Notes, the Holders holding Common Stock issued upon conversion shall receive the rights issued under such plan, whether or not such rights have separated from the Common Stock at the time of such conversion. If the rights under such new plan have become separated from the Common Stock prior to the conversion of a Note, the Holders holding Common Stock issued upon conversion shall receive the Rights that they would have received if the Note had been converted immediately prior to the separation of the Rights.
(d) In case the Company or any of its Subsidiaries or any Company Benefit Plan shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 4.06 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) For the purpose of any computation under subsections (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 for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or other event requiring such computation. The Closing Price for each day shall be (i) the last sale price, or the closing bid price if no sale occurred, of such class of stock on the principal securities exchange on which such class of stock is listed, if the Common Stock is listed or admitted for trading on any national securities exchange, (ii) the last reported sale price of Common Stock on The Nasdaq Stock Market, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (i), the mean 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 5 of the 10 preceding days. If the 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 (iii) of the preceding sentence if bid and asked quotations are reported but actual transactions are not, and in the manner set forth in clause (ii) 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 last reported sale prices for any period shall be the fair market value of such class of stock 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 Common Stock means (i) if the Common Stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business or (ii) if the Common Stock is quoted on The Nasdaq Stock Market or any similar system of automated dissemination of quotations of securities prices, days on which trades may be made on such system.
(f) Rights, warrants or options distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights, warrants or options, until the occurrence of a specified event or events ("Trigger Event"):
(1) are deemed to be transferred with such shares of Common Stock,
(2) are not exercisable, and
(3) are also issued in respect of future issuances of Common Stock, shall not be deemed distributed for purposes of this Section 4.06 until the occurrence of the earliest Trigger Event. In addition, in the event of any distribution of rights, warrants or options, or any Trigger Event with respect thereto, that shall have resulted in an adjustment to the Conversion Price under this Section 4.06, (1) in the case of any such rights, warrants or options which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights, warrants or options (assuming such holder had retained such rights, warrants or options), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of any such rights, warrants or options all of which shall have expired without exercise by any holder thereof, the Conversion Price shall be readjusted as if such issuance had not occurred.
(g) In any case in which this Section 4.06 shall require that an adjustment be made immediately following a record date established for purposes of Section 4.06, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.10) 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
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security Note attached hereto as Exhibit EXHIBIT A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall shall
(i1) pay a dividend or other distribution in shares of Common Stock to holders of Common Stock, ,
(ii2) subdivide its outstanding Common Stock into a greater number of shares, ,
(iii3) combine its outstanding Common Stock into a smaller number of shares or shares, or
(iv4) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security Note been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, warrants or options to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) ), at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, Stock rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) those rights, warrants and options and warrants referred to in subsection (b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 4.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, or any employee benefit plan for the benefit of employees of the Company or any of its Subsidiaries or Affiliates (a "Company Benefit Plan"), of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.64.06, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights, warrants or options (other than those referred to in subsection (b) above) ("Rights") PRO RATA to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.06, make proper provision so that each Holder of a Note who converts 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 Conversion Shares, a number of Rights to be determined as follows: (x) 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 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 (y) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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. If the Company implements a new stockholder rights plan, the Company agrees that such rights plan will provide that upon conversion of the Notes, the Holders holding Common Stock issued upon conversion shall receive the rights issued under such plan, whether or not such rights have separated from the Common Stock at the time of such conversion. If the rights under such new plan have become separated from the Common Stock prior to the conversion of a Note, the Holders holding Common Stock issued upon conversion shall receive the Rights that they would have received if the Note had been converted immediately prior to the separation of the Rights.
(d) In case the Company or any of its Subsidiaries or any Company Benefit Plan shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allclause
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth as stated in paragraph 8 of the form of Security attached hereto as Exhibit A and Securities (the “Conversion Price”) shall be adjusted from time to time by the Company as follows:
(a) In case the Company Brocade shall (i) pay a dividend or other distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company Brocade shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (ef) belowof this Section 4.6) at on the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at such the current market priceprice per share (as determined in accordance with subsection (f) of this Section 4.6) of Common Stock on such record date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company Brocade shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company Brocade (other than Common Stock) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than Brocade but excluding (i) dividends or distributions paid exclusively in cash or (ii) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined determined in accordance with subsection (ef) belowof this Section 4.6) of the Common Stock on the record date mentioned described below less the fair market value on such record date (as determined by the Board of Directors of the CompanyBrocade, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers’ Certificate of Brocade delivered to the Trustee) of the portion of the capital stock or Capital Stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined determined in accordance with subsection (ef) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d) In case the Company Brocade shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all or substantially all holders of its Subsidiaries shall repurchase Common Stock cash in an aggregate amount that, together with the aggregate amount of (including by way of tender offeri) shares of Common Stock, any cash and the fair market value (as determined by the Board of Directors of Brocade, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate of Brocade delivered to the sum of (i) the aggregate consideration paid for such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iiiTrustee) of the preceding paragraph (c) paid any other consideration payable in respect of any tender offer by Brocade or a Subsidiary of Brocade for Common Stock consummated within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiii) the aggregate fair market value all other cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 10.0% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the date ofBusiness Day (the “Determination Date”) immediately preceding the day on which such Triggering Distribution is declared by Brocade multiplied by the number of shares of Common Stock outstanding on the Determination Date (excluding shares held in the treasury of Brocade), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the Determination Date by a fraction of which the numerator shall be the current market price per share of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (determined as aforesaid in this Section 4.6(d)) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such current market price per share of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day next following the date on which the Triggering Distribution is paid.
(e) In case any tender offer made by Brocade or any of its Subsidiaries for Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors of Brocade, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate of Brocade delivered to the Trustee thereof) of any other consideration) that, together with the aggregate amount of (i) any cash and the fair market value (as determined by the Board of Directors of Brocade, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate of Brocade delivered to the Trustee) of any other consideration payable in respect of any other tender offers by Brocade or any Subsidiary of Brocade for Common Stock consummated within the 12 months preceding the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (ii) all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 10.0% of the product of the current market price per share of Common Stock (as determined in accordance with subsection (f) of this Section 4.6) as of the last date (the “Expiration Date”) at which tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”) multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of Brocade) at the Expiration Time, then, immediately prior to the opening of business on the day after the Expiration Date, 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 close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of Brocade) at the Expiration Time multiplied by the current market price per share of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of such repurchase, Brocade) at the Expiration Time and the denominator of which shall be the current market price per share of Common Stock (as defined determined in accordance with subsection (e) belowf) of the Common Stock this Section 4.6) on the date of Trading Day next succeeding the Expiration Date, such repurchase. Such adjustment shall reduction to become effective immediately after prior to the date opening of business on the day following the Expiration Date. In the event that Brocade is obligated to purchase shares pursuant to any such repurchasetender offer, but Brocade is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(e). For purposes of this subsection (dSection 4.6(e), the "Aggregate Market Premium" is term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the excesspurchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 4.6, 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 the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as the case may be, with respect to distributions or tender offers under subsections (c), (d) and (e) of this Section 4.6 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c), (d) or (e) of this Section 4.6. The closing price for each day shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the NNM or, if anythe Common Stock is not listed or admitted to trading on the NNM, 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 the NNM or any national securities exchange, the last reported sales price of the aggregate repurchase Common Stock as quoted on the NNM or, in case no reported sales takes place, the average of the closing bid and asked prices as quoted on the NNM or any comparable system or, if the Common Stock is not quoted on the NNM or any comparable system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by Brocade for that purpose. If no such prices are available, the current market price per share shall be the fair value of a share of Common Stock as determined by the Board of Directors of Brocade (which shall be evidenced by an Officers’ Certificate of Brocade delivered to the Trustee).
(g) In any case in which this Section 4.6 shall require that an adjustment be made following a record date or a Determination Date or Expiration Date, as the case may be, established for purposes of this Section 4.6, Brocade may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.9) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration Date the shares of Common Stock and other Capital Stock of Brocade issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of Brocade 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, Brocade shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by Brocade of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by Brocade for allany reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Samples: Second Supplemental Indenture (Brocade Communications Systems Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company Issuer shall (i) pay a dividend or other make a distribution on Common Stock in shares of Common Stock to holders of Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, shares or (iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted as provided below so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he or she would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Issuer shall issue to all or substantially all holders of its Common Stock, rights, warrants or options to all holders of Common Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share (as determined pursuant to subsection (d) below) of the Common Stock on the record date 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:
(i) the Conversion Price in effect immediately prior to the date of issuance of such rights, warrants or options by a fraction, of which
(ii) the numerator shall be (A) 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 (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) 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 (B) the number of additional shares of Common Stock which are so offered for subscription or purchase. Such adjustment shall become effective immediately, except as determined provided in accordance with subsection (e) below) at , after the record date for the determination of stockholders holders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company Issuer shall distribute to all or substantially all holders of its Common Stock any shares evidences of capital stock of indebtedness, equity securities (including equity interests in the Company Issuer's Subsidiaries) other than Common Stock or other assets (other than Common Stock) or evidences cash dividends paid out of its indebtednessearned surplus of the Issuer or, cashif there shall be no earned surplus, other securities or other assetsout of net profits for the fiscal year in which the dividend is made and/or the preceding fiscal year), or shall distribute to all or substantially all holders of its Common Stock, Stock rights, warrants or options to subscribe for or purchase any of its to securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ed) below) of the 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 of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value, and described in a Board Resolution filed with the Trustee) of the portion of the capital stock or assets, evidences of indebtedness, indebtedness and equity securities or assets so distributed or of such subscription rights, warrants or options, in each case as options applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (of the Common Stock. Such adjustment shall become effective immediately, except as defined provided in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately , after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case For the Company or purpose of any of its Subsidiaries shall repurchase computation under subsections (including by way of tender offerb) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined 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 commencing not more than 20 trading days before, and ending not later than, the earliest of the date in subsection (e) below) question and the date before the "ex" date with respect to the issuance or distribution 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 14.03, the fair value of the Common Stock on such day, as determined by the Board of Directors, shall be used. 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 Common Stock trades regular way on the principal national securities exchange on which the 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 following a record date, the Issuer may elect to defer the effectiveness of such repurchaseadjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), less in which case the quotient obtained by dividing Issuer shall, with respect to any Security converted after such record date and before such adjustment shall have become effective (i) defer making any cash payment pursuant to Section 14.03 or issuing to the Aggregate Market Premium involved in Holder of such repurchase (as defined hereinafter) by the difference between Security the number of shares of Common Stock outstanding before and other capital stock of the Issuer issuable upon such repurchase and conversion in excess of the number of shares of Common Stock and other capital stock of the subject Issuer issuable thereupon only on the basis of such repurchasethe 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 denominator appropriate cash payment pursuant to Section 14.03 and issue to such Holder the additional shares of which Common Stock and other capital stock of the Issuer issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required if Securityholders are to participate in the current market price per share (as defined transaction on a basis and with notice that the Board of Directors determines to be fair and appropriate in subsection (e) below) light of the basis and notice on which holders of Common Stock on participate in the date transaction. In addition, no adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of such repurchase. Such adjustment shall become effective immediately after at least 1% in the date of such repurchase. For purposes Conversion Price; provided, that any adjustments which by reason of this subsection (d)f) 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 "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for allcase may be.
Appears in 1 contract
Samples: Indenture (Texas Instruments Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by Parent or the Company as follows:
(a) In case the Company Parent shall (i) pay a dividend or other distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (ax) 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company Parent shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 Per Share of Common Stock (as determined in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Share of Common Stock on such current market pricerecord date, and of which (y) the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company Parent shall distribute to all or substantially all holders of its Common Stock any shares of capital stock of the Company Parent (other than Common Stock) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid in cash or (2) dividends or distributions referred to in subsection (a) of this Section 5.06), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 5.06 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the CompanyParent, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d) In case Parent shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash in an aggregate amount that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 5.06 has been made and (B) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 5.06 has been made, exceeds an amount equal to 10.0% of the product of the Current Market Price Per Share of Common Stock on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the Current Market Price Per Share of the Common Stock on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such Current Market Price Per Share of the Common Stock on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(1) In case any tender offer made by Parent or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as reasonably determined in good faith by way the Board of tender offerDirectors of Parent), whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) shares of Common Stockany other consideration) that, together with the aggregate amount of (i) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the sum of (i) the aggregate consideration paid for such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iiiTrustee) of the preceding paragraph (c) paid any other consideration payable in respect of any other tender offers by Parent or any Subsidiary of Parent for Common Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 5.06 has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 5.06 has been made, exceeds 10an amount equal to 10.0% of the product of the Current Market Capitalization Price Per Share of Common Stock as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date close of such distribution or purchase business on the Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of Parent) at the Expiration Time multiplied by the Current Market Price Per Share of the Common Stock on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of Parent) at the Expiration Time and the Current Market Price Per Share of Common Stock on the Trading Day next succeeding the Expiration Date, such repurchasereduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that Parent or its Subsidiary, as the case may be, is obligated to purchase shares pursuant to any such tender offer, but Parent or its Subsidiary, as the case may be, is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 5.06(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 5.06(e).
(2) For purposes of Section 5.06(d) and 5.06(e), the term "tender offer" shall mean and include both tender offers and exchange offers (within the meaning of U.S. Federal securities laws), all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(f) For the denominator purpose of which shall be any computation under subsections (b), (c), (d) and (e) of this Section 5.06, the current market price per share of Common Stock (the "Current Market Price Per Share") on any date shall be deemed to be the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as defined in the case may be, with respect to distributions or tender offers under subsection (e) belowof this Section 5.06 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of this Section 5.06. The Closing Price for each day (the "Closing Price") shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on The New York Stock Exchange (the "NYSE") or The Nasdaq National Market (the "NNM"), as applicable, or, if the Common Stock is not listed or admitted to trading on the NYSE or the NNM, the principal national securities exchange or quotation system on which the Common Stock is quoted or listed or admitted to trading or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by Parent for that purpose. If no such prices are available, the Current Market Price Per Share shall be the fair value of a share of Common Stock as reasonably determined in good faith by the Board of Directors of Parent (which shall be evidenced by an Officers' Certificate delivered to the Trustee).
(g) In any case in which this Section 5.06 shall require that an adjustment be made following a record date of such repurchase. Such adjustment shall become effective immediately after or a Determination Date or Expiration Date, as the date of such repurchase. For case may be, established for purposes of this subsection Section 5.06, Parent may elect to defer (d)but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 5.09) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration Date the shares of Common Stock and other capital stock of Parent issuable upon such conversion over and above the shares of Common Stock and other capital stock of Parent 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, Parent shall issue or cause its transfer agent to issue due bills or other appropriate evidence prepared by Parent of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by the Company for any reason, the "Aggregate Market Premium" is Conversion Price shall be readjusted to the excess, Conversion Price which would then be in effect if any, of the aggregate repurchase price paid for allsuch record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Samples: Indenture (Fairchild Semiconductor International Inc)
Adjustment of Conversion Price. The Unless otherwise specified as contemplated by Section 2.02 for Securities of that series, the conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and for Securities convertible into Common Stock shall be adjusted from time to time by the Company as follows:
(a) In case the Company Ventas, Inc. shall (i1) pay a dividend or other make a distribution on Common Stock in shares of Common Stock to holders of Common Stock, (ii2) subdivide its the outstanding Common Stock into a greater number of shares, shares or (iii3) combine its the outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto conversion price for the Securities of that series shall be adjusted so that the Holder of any such Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive after the happening of any of the events described above had such Security been converted immediately prior to the happening record date in the case of such eventa dividend or distribution or the effective date in the case of subdivision or combination. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Ventas, Inc. shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than expiring within 45 days after the record date described below and expiring not more than 45 days after such record datementioned below) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined defined for purposes of this paragraph (b) in accordance with subsection paragraph (e) below) ), at the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the Conversion Price 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, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered by receivable upon exercise of such rights, warrants rights or options (or into which the convertible securities so offered by such rights, warrants or options are convertible)warrants. Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately immediately, except as provided in paragraph (h) below, after such record date. If at In determining whether any rights or warrants entitle the end Holders of the period during which such rights, warrants Securities of that series to subscribe for 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 purchase shares of Common Stock actually issued (or at less than such current market price, and in determining the number aggregate offering price of such shares of Common Stock issuable upon conversion Stock, there shall be taken into account any consideration received by Ventas, Inc. for such rights or warrants plus the exercise price thereof, the value of convertible securities actually issued) for such consideration or exercise price, as the total number case may be, if other than cash, to be determined by the Board of shares of Common Stock offered (or the convertible securities offered)Directors.
(c) In case the Company Ventas, Inc. shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company Ventas, Inc. (other than Common Stock) or evidences of its indebtednessindebtedness or assets (excluding cash dividends or distributions paid from retained earnings of Ventas, cash, other securities Inc.) or other assets, rights or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and those rights or warrants referred to in subsection paragraph (b) above or above) (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliatesthe foregoing being herein in this paragraph (c) called the “Special Securities”), then, in each such case, unless Ventas, Inc. elects to reserve such Special Securities for distribution to the 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 concluded within to which such Holder is entitled, the preceding 12 monthsamount and kind of Special Securities which such Holder would have received if such Holder had, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of immediately prior to the record date for such distribution)the distribution of the Special Securities, then in each such case converted Securities into Common Stock, 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 or purchase by a fraction, fraction the numerator of which shall be the current market price per share (as defined for purposes of this paragraph (c) in subsection paragraph (e) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valueconclusive) of the portion of the capital stock or evidences of indebtedness, securities or assets Special Securities so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection paragraph (e) below) of Common Stock; provided, however, that in the event the then fair market value (as so determined) of the portion of the 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 mentioned above, in lieu of the 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 Holder would have received had such Holder converted such Securities immediately prior to the record datedate for the distribution of the Special Securities. Such adjustment shall become effective immediately immediately, except as provided in paragraph (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company If, pursuant to paragraph (b) or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock shall have been adjusted because Ventas, Inc. has declared a dividend, or made a distribution, on the outstanding before such repurchase and the number of shares of Common Stock in the subject form of any right or warrant to purchase securities of Ventas, Inc., or Ventas, Inc. has issued any such repurchaseright or warrant, and then, upon the denominator expiration of which 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.
(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 in subsection (e) below) commencing 45 Trading Days before the date in question. For the purpose of any computation under paragraph (c) 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 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, regular way, or, in 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 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 Common Stock means (1) if the Common Stock is listed or admitted for trading on the date 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 Article 13 (other than this paragraph (f)) not later than such time as may be required in order to preserve the tax free nature of a distribution to the holders of Common Stock. All calculations under this Article 13 shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be, with one-half cent and 1/200 of a share, respectively, being rounded upward. Anything in this Section 13.05 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 13.05, 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 conversion price is adjusted, as herein provided, Ventas, Inc. shall promptly file with the Trustee, at the corporate trust office of the Trustee, and with the office or agency maintained by Ventas, Inc. for the conversion of Securities of that series pursuant to Section 4.02, 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 repurchaseadjustment. Such Neither the Trustee nor any conversion agent shall be under any duty or responsibility with respect to any such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Holder of 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.
(h) In any case in which this Section 13.05 provides that an adjustment shall become effective immediately after a record date for an event, Ventas, Inc. may defer until the date occurrence of such repurchase. For purposes event (1) issuing to the Holder of this subsection (d), any Security of that series converted after such record date and before the "Aggregate Market Premium" is occurrence of such event the excess, if any, additional shares of the aggregate repurchase price paid for allCommon 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 13.06 hereof.
Appears in 1 contract
Samples: Indenture (Ventas Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") initially shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock or other Capital Stock to all holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bSection 10.06(b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (aSection 10.06(a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 10.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) or exchange offers by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.610.06, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock Capital Stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable applicable, to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of a tender offer) or exchange offer shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 10.06 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall 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 date of repurchase with respect to such share.
(e) 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 event requiring such computation. In any case in which this Section 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 (but only until five Business Days following the filing by the Company with the Trustee of the 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 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. If after an adjustment a Holder of a Security upon conversion of such Security may receive shares of two or more classes of Capital Stock of the Company, the Conversion Price shall thereafter be subject to adjustment upon the occurrence of an action taken with respect to any such class of Capital Stock as is contemplated by this Article 10 with respect to the Common Stock, on terms comparable to those applicable to Common Stock in this Article 10.
Appears in 1 contract
Samples: Indenture (LNR Property Corp)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 Per Share of Common Stock (as determined in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Share of Common Stock on such current market pricerecord date, and of which (y) the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any Person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase Common Stock cash in an aggregate amount that, together with the aggregate amount of (including by way of tender offerA) shares of Common Stock, any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiB) the aggregate fair market value all other cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 12.5% of the product of the Current Market Capitalization Price Per Share of Common Stock on the date ofBusiness Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination Date (excluding shares held in the treasury of the Company), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the Determination Date by a fraction of which the numerator shall be the Current Market Price Per Share of the Common Stock on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such Current Market Price Per Share of the Common Stock on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(1) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) of any other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (B) all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 12.5% of the product of the Current Market Price Per Share of Common Stock as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, then, immediately prior to the opening of business on the day after the Expiration Date, 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 close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price Per Share of the Common Stock on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of the Company) at the Expiration Time and the Current Market Price Per Share of Common Stock on the Trading Day next succeeding the Expiration Date, such repurchasereduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(e).
(2) For purposes of Section 4.6(d) and 4.6(e), the term "tender offer" shall mean and include both tender offers and exchange offers (within the meaning of U.S. Federal securities laws), all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(f) For the denominator purpose of which shall be any computation under subsections (b), (c), (d) and (e) of this Section 4.6, the current market price per share of Common Stock (the "Current Market Price Per Share") on any date shall be deemed to be the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as defined in the case may be, with respect to distributions or tender offers under subsection (e) belowof this Section 4.6 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allSection 4.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in paragraph 7 of the Securities (the "“Conversion Price"”) shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted (without duplication) from time to time by the Company Issuer as follows:
(a) In case the Company Issuer shall (i) pay a dividend or other distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(bi) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company Issuer shall distribute to all or substantially all holders of its Common Stock any shares of capital stock of the Company Issuer (other than Common Stock) or ), evidences of its indebtedness, rights or warrants to purchase the Issuer’s capital stock or other non-cash assets (the “distributed assets”) (including securities of any person other than the Issuer but excluding (1) dividends or distributions to the extent paid in cash, other securities (2) dividends or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations distributions referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B3) the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to a Rights Plan adopted before or after the preceding 12 months, in each case in respect date of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distributionIndenture), 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 close of business on the record date of with respect to such distribution or purchase by a fraction, :
(1) the numerator of which shall be the current market price per share Sale Price (as defined determined in accordance with subsection (ef) belowof this Section 4.6) of the Common Stock for the 10 Trading Days commencing on and including the record fifth Trading Day after the date mentioned below on which “ex-dividend trading” commences for such dividend or distribution on Nasdaq, the New York Stock Exchange or such other national or regional exchange or market on which the Common Stock is then listed or quoted, less the fair market value on such the record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or distributed assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share Stock (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization determined on the date of, and after giving effect to, such repurchase, then 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 basis of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and on the number of shares of Common Stock the subject of such repurchase, and record date); and
(2) the denominator of which shall be the current market price per share Sale Price (as defined determined in accordance with subsection (ef) belowof this Section 4.6) of the Common Stock for the 10 Trading Days commencing on and including the fifth Trading Day after the date of on which “ex-dividend trading” commences for such repurchase. dividend or distribution on Nasdaq, the New York Stock Exchange or such other national or regional exchange or market on which the Common Stock is then listed or quoted.
(ii) Such adjustment reduction shall become effective immediately after prior to the opening of business on the day following the record date of for such repurchasedistribution. 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. For purposes of this Section 4.6(b), to the extent securities are distributed, the fair market value of the securities so distributed will be based on the average sale prices (determined in a similar manner to the Sale Price as determined in accordance with subsection (d)f) of this Section 4.6) of those securities for the 10 Trading Days commencing on and including the fifth Trading Day after the date on which “ex-dividend trading” commences for such dividend or distribution on Nasdaq, the "Aggregate Market Premium" is New York Stock Exchange or such other national or regional exchange or market on which the excess, if any, of the aggregate repurchase price paid for allsecurities are then listed or quoted.
Appears in 1 contract
Samples: Indenture (Wynn Resorts LTD)
Adjustment of Conversion Price. The conversion price (the "Conversion PriceCONVERSION PRICE") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company (without duplication) as follows:
(a) In case the Company shall (i) pay a dividend or other distribution in shares of Common Stock or other Capital Stock to all holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more later than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bSection 10.06(b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (aSection 10.06(a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 10.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.610.06, does not exceed 105% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(d) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock Capital Stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable applicable, to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(d) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offeroffer (other than an odd-lot tender), but excluding shares purchased in connection with the initial offering of the Securities) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 10.06 previously has been made, exceeds 105% of Market Capitalization on the date of, and after giving effect to, of such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market PremiumAGGREGATE MARKET PREMIUM" is the excess, if any, of the aggregate repurchase price paid for allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) 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
Appears in 1 contract
Samples: Indenture (Murco Drilling Corp)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") initially shall be that price set forth in paragraph 8 of the form of Security Note attached hereto as Exhibit A and A, but shall be adjusted from time to time by the Company Company, without duplication, as follows:
(a) In case the Company shall (i) pay a dividend or other distribution in shares of Common Stock to all holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it would have owned or have been entitled to receive had such Security Note been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification. If any dividend or distribution described in this Section 12.06(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) Market Price at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market priceMarket Price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bSection 12.06(b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (aSection 12.06(a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distributioncash), 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock Market Price on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock Capital Stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable applicable, to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock Market Price on such record date; provided that no adjustment to the Conversion Price or the ability of a Holder of a Note to convert will be made pursuant to this Section 12.06(c) if the Company provides that Holders of Notes will participate in such cash dividend or distribution on an as-converted basis without conversion and provided further, 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 Common Stock issuable upon such conversion, the distribution such Holder would have received had such Holder converted its Note immediately prior to the record date for such distribution. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(d) In case a tender or exchange offer made by the Company or any Subsidiary of its Subsidiaries the Company for all or any portion of the Common Stock shall repurchase expire and such tender or exchange offer (including by way as amended as of tender offerthe expiration thereof) shares shall require the payment to common stockholders of consideration per share of Common Stock, and the Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the sum Board of (iDirectors) the aggregate consideration paid for such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions that as of the type described in clause last time (iiithe "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Price of the preceding paragraph (c) paid within the twelve (12) months preceding the date of purchase of such shares a share of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date ofTrading Day next succeeding the Expiration Time, and after giving effect to, such repurchase, then 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 or purchase Expiration Time by a fraction, ,
(i) the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be 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 shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such repurchase 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 subject Expiration Time and the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to the opening of business on the day following the 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.
(e) In case the Company shall declare a cash dividend or distribution to all or substantially all of the holders of Common Stock, the Conversion Price shall be decreased so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average of the Closing Prices of the Common Stock price for the three consecutive trading days ending on the date immediately preceding the Ex-Dividend Date for such dividend or distribution (the "Pre-Dividend Sale Price"), minus the full amount of such repurchasedividend or distribution to the extent payable in cash applicable to one share of Common Stock, and and
(ii) the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of Pre-Dividend Sale Price, such repurchase. Such adjustment shall to become effective immediately after the record date for such dividend or distribution; provided that no adjustment to the Conversion Price or the ability of a Holder of a Note to convert will be made pursuant to this Section 12.06(e) if the Company provides that Holders of Notes will participate in such repurchasecash dividend or distribution on an as-converted basis without conversion and provided further, 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 Common Stock issuable upon such conversion, the amount of cash such Holder would have received had such Holder converted its Note immediately prior to the record date for such dividend or distribution. For If such dividend or 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. In any case in which this Section 12.06 shall require that an adjustment be made immediately following a record date established for purposes of this subsection (d)Section 12.06, the "Aggregate Market Premium" is Company may elect to defer (but only until five Business Days following the excess, if any, filing by the Company with the Trustee of the aggregate repurchase price paid for allcertificate described in Section 12.06) 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: Indenture (Watermark Realty Inc)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (il) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, shares or (iii3) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder holder of any Security Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive immediately following such action had such Security Debenture been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the then current market price per share of the Common Stock (as determined in accordance with pursuant to subsection (ef) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, options, warrants or other convertible or exchangeable securities by a fraction, of which
(ii) the numerator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights, options, warrants or other convertible or exchangeable securities, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rightsfor subscription, warrants purchase or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) other acquisition would purchase at such current market price (determined by multiplying such total number of shares by the exercise price of such rights, options, warrants or other convertible or exchangeable securities (which exercise price shall be the amount of cash consideration delivered by the holder thereof upon exercise, but shall not include the value of, or the amount of the obligation of the Company under, such right, option, warrant or other convertible or exchangeable security) and dividing the product so obtained by such current market price), and of which
(iii) the denominator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record date rights, options, warrants or other convertible or exchangeable securities, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rightsfor subscription, warrants purchase or options are convertible)other acquisition. Such adjustment shall be made successively whenever any become effective immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such rights, warrants options or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c) In case the Company or any subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its assets, evidences of indebtedness, cash or securities other than Common Stock any shares of capital stock of the Company (other than Common Stock(x) dividends or evidences of its indebtedness, cash, other securities distributions exclusively in cash or other assets, (y) any dividend or shall distribute distribution for which an adjustment is required to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to be made in accordance with subsection (b) above or (fabove) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with (c) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common StockStock 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 the sum of (i) the aggregate other consideration paid or payable in respect of any tender offer by the Company or any of its subsidiaries for Common Stock (any such Common Stock, (iitender offer being referred to as an "Offer") the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of concluded within the preceding paragraph (c) paid within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1012.5% of Market Capitalization 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 (e) below) times the number of shares of Common Stock then outstanding) on the record date ofof such distribution, and after giving effect to, in each such repurchase, then 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 or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on such record date less the amount of the cash and the fair market value of the other consideration so distributed within such preceding 12 months 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.
(e) In case the Company or any subsidiary of the Company shall complete an Offer that involves an aggregate consideration that, together with (i) any cash and other consideration paid or payable in an Offer that expired within the 12 months preceding the expiration of such repurchaseOffer in respect of which no adjustment has been made and (ii) the aggregate amount of all other all-cash distributions made within the 12 months preceding the expiration of such Offer in respect of which no adjustment has been made (other than all-cash distributions made upon a merger or consolidation to which Section 13.6 applies), less exceeds 12.5% of the quotient obtained by dividing Company's market capitalization (defined as being the Aggregate Market Premium involved product of the then current market price of the Common Stock (determined as provided in such repurchase subsection (as defined hereinafterf) by the difference between below) times the number of shares of Common Stock outstanding then outstanding) on the expiration of such Offer, 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 the commencement of such tender offer by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such commencement 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 upon the consummation of the Offer.
(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. 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 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 NASDAQ National Market System (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 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 69 later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Debenture converted after such record date and on and before such repurchase and adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 13.3 hereof or issuing to the Holder of such Debenture the number of shares of Common Stock and other capital stock of the subject Company (or other assets or securities) issuable upon such conversion in excess of such repurchasethe number of shares of Common Stock and other Capital Stock of the 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 denominator appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of which Common Stock and other Capital Stock of the Company issuable on such conversion.
(i) No adjustment in the Conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least 1.0% of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Conversion Price; PROVIDED, that any adjustments which by reason of this subsection (d)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 adjust- ed as herein provided, the "Aggregate Market Premium" is Company shall promptly (i) file with the excess, if any, Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the aggregate repurchase price paid for allfacts 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 Debentures at his address as the same appears on the registry books of the Company.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in paragraph 6 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such current market pricerecord date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price Current Market Price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price Current Market Price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
. In the event the then fair market value (das so determined) In case of the Company portion of the capital stock, evidences of indebtedness or any other non-cash assets so distributed or of its Subsidiaries shall repurchase (including by way of tender offer) shares such rights or warrants applicable to one share of Common StockStock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, and 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 capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants such holder would have received had such holder converted each Security on such 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 the Board of Directors determines the fair market value of any distribution for purposes of this Section 4.6(d) by reference to the sum actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. In the event that the Company implements a share rights plan ("Rights Plan"), upon conversion of the Securities into Common Stock, to the extent that any such Rights Plan is still in effect upon such conversion, the holders of Securities will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.6(c). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) the aggregate consideration paid for are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.6 (iiand no adjustment to the Conversion Price under this Section 4.6 will be required) until the aggregate fair market value occurrence of cash dividends the earliest Trigger Event, whereupon such rights and distributions warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section 4.6(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in clause (iii) of the preceding paragraph (csentence) paid within with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to Conversion Price under this Section 4.6 previously has been was made, and (iii1) in the aggregate fair market value case of any amounts previously paid for the repurchase of Common Stock of a type described in this paragraph (d) within the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of rights or warrants which no adjustment pursuant to this Section 4.6 previously has shall all have been maderedeemed or repurchased without exercise by any holders thereof, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the same shall case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price determined received by multiplying the Conversion Price in effect immediately prior a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such distribution redemption or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and (2) in the denominator case of such rights or warrants which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d)have expired or been terminated without exercise by any holders thereof, the "Aggregate Market Premium" is the excess, Conversion Price shall be readjusted as if any, of the aggregate repurchase price paid for allsuch rights and warrants had not been issued.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (ef) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or subsection (fg) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash referred to in an aggregate amount that, combined together with subsection (Ae) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distributionbelow), 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (ef) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (ef) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way makes a payment to holders of Common Stock in respect of a tender offer or exchange offer) shares of , other than an odd-lot offer, for the Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for such Common Stock, and (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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock in respect of a type described in this paragraph (d) tender offer or exchange offer, other than an odd-lot offer, 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (ef) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (ef) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (f) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) In case the Company shall declare a cash dividend or cash distribution to all holders of its Common Stock, the Conversion Price shall be decreased so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for such dividend or distribution by the following fraction:
(i) the numerator shall be the average of the Common Stock Price for the three consecutive Trading Days ending on the Trading Day immediately preceding the record date for such dividend or distribution (the "Pre-Dividend Sale Price"), minus the full amount of such cash dividend or cash distribution applicable to one share of Common Stock, and
(ii) the denominator shall be the Pre-Dividend Sale Price; such adjustment to become effective immediately after the record date for such dividend or distribution; provided no adjustment to the Conversion Price will be made if the Company provides that Holders of Securities will participate in the cash dividend or cash distribution without conversion; provided further, 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, the amount of cash such Holder would have received had such Holder converted its Security immediately prior to the record date for such cash dividend or cash distribution at the Conversion Rate and for the Conversion Value in effect at such time. 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.
(f) For the purpose of any computation under subsections (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 event requiring such computation. The "Closing Price" with respect to the Common Stock for any day shall mean the closing sale price, regular way, per share of Common Stock on such day or, in case no such sale of Common Stock takes place on such day, the average of the reported closing bid and asked prices, regular way, per share of Common Stock in each case on the principal national security exchange or other quotation system on which the Common Stock is quoted or listed or admitted to trading on such day, or, if the Common Stock is not so quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices per share of Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or, if such average is not so available, determined in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or if not so determinable as provided under any applicable alternative above, a price per share of Common Stock determined in good faith by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof,
Appears in 1 contract
Samples: Indenture (Waste Connections Inc/De)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (ed) belowof this Section 4.6) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at such the current market priceprice per share (as defined in subsection (d) of this Section 4.6) of Common Stock on such record date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (ed) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or Capital Stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (ed) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d1) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash in an aggregate amount that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (B) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 10.0% of the product of the current market price per share of Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (determined as aforesaid in this Section 4.6(c)(1)) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day next following the date on which the Triggering Distribution is paid.
(2) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by way the Board of tender offerDirectors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) shares of Common Stockany other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 10.0% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (d) of this Section 4.6) as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of such repurchase, the Company) at the Expiration Time and the denominator of which shall be the current market price per share of Common Stock (as defined determined in accordance with subsection (e) belowd) of the Common Stock this Section 4.6) on the date of Trading Day next succeeding the Expiration Date, such repurchase. Such adjustment shall reduction to become effective immediately after prior to the date opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such repurchasetender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(c)(2) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(c)(2).
(3) For purposes of this subsection (dSection 4.6(c), the term "Aggregate Market Premiumtender offer" is shall mean and include both tender offers and exchange offers, all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the excesspurchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, if anyand all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(d) For the purpose of any computation under subsections (b) and (c) of this Section 4.6, the current market price per share of Common Stock on any date shall be deemed to be the average of the aggregate repurchase price paid daily closing prices for allthe 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as the case may be, with respect to distributions or tender offers under subsection (c) of this Section 4.6 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b) or (c) of this Section 4.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 9 of the form of Security Note attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security Note been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or evidences of its indebtednessIndebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 12.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or AffiliatesSubsidiaries, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.612.06, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or optionsdistributed, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 12.06 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 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 4.6 12.06 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) For the purpose of any computation under subsections (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 for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or other event requiring such computation. The Closing Price for each day shall be (i) the last sale price, or the closing bid price if no sale occurred, of such class of stock on the principal securities exchange on which such class of stock is listed, if the Common Stock is listed or admitted for trading on any national securities exchange, (ii) the last reported sale price of Common Stock on the New York Stock Exchange, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (i), the mean 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 5 of the 10 preceding days. If the 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 (iii) of the preceding sentence if bid and asked quotations are
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders (including the Announced Split (as defined below)), (ii) make a distribution on its Common Stock in shares of Common Stock, (iiiii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (ed) belowof this Section 4.6) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at such the current market priceprice per share (as defined in subsection (d) of this Section 4.6) of Common Stock on such record date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (ed) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (ed) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d1) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash in an aggregate amount that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (B) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 10.0% of the product of the current market price per share of Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (determined as aforesaid in this Section 4.6(c)(1)) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(2) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by way the Board of tender offerDirectors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) shares of Common Stockany other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 10.0% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (d) of this Section 4.6) as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of such repurchase, the Company) at the Expiration Time and the denominator of which shall be the current market price per share of Common Stock (as defined determined in accordance with subsection (e) belowd) of the Common Stock this Section 4.6) on the date of Trading Day next succeeding the Expiration Date, such repurchase. Such adjustment shall reduction to become effective immediately after prior to the date opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such repurchasetender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(c)(2) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(c)(2).
(3) For purposes of this subsection (dSection 4.6(c), the term "Aggregate Market Premiumtender offer" is shall mean and include both tender offers and exchange offers, all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the excesspurchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, if anyand all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(d) For the purpose of any computation under subsections (b), (c) and (d) of this Section 4.6, the current market price per share of Common Stock on any date shall be deemed to be the average of the aggregate repurchase price paid daily closing prices for allthe 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as the case may be, with respect to distributions or tender offers under subsection (c) of this Section 4.6 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b) or (c) of this Section 4.
Appears in 1 contract
Samples: Indenture (Bisys Group Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate.
(b) In case the Company shall issue to all or substantially all holders of (1) subdivide its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus subdivision or combination and the denominator shall be the number of shares which outstanding immediately after giving effect to such subdivision or combination. An adjustment made pursuant to this subsection (b) shall become effective immediately, except as provided in subsections (i) and (j) below, after the aggregate subscription effective date of a subdivision or combination.
(c) In case the Company shall issue rights, options or warrants to all or substantially all holders of Common Stock entitling them to subscribe for or purchase price for the total number of shares of Common Stock offered by at a price per share less than the rights, warrants or options so issued (or the aggregate conversion then current market price per share of the convertible securities offered by Common Stock (as determined pursuant to subsection (g) below) on the record date fixed for determination of the stockholders entitled to receive such rights, warrants option or options) would purchase at warrants, the Conversion Price in effect immediately following such current market record date shall be adjusted to a price, and computed to the denominator nearest cent, so that the same shall equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (c) are issuedonly exercisable upon the occurrence of certain triggering events, and shall become effective immediately after such record date. If at then the end of 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 will not 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 adjusted as provided in this subsection (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issuedc) for the total number of shares of Common Stock offered (or the convertible securities offered)until such triggering events occur.
(cd) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its Common Stock any shares assets, evidences of capital stock of the Company indebtedness, cash or securities (other than Common Stock(x) dividends or 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 evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bc) above or (fz) any distribution of rights or warrants subject to subsection (l) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price in effect immediately following the record date fixed for the determination of the stockholders entitled to such distribution) shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value (determined as provided in subsection (g) below) on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(de) In case the Company or any Subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with subsection (d) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all or substantially all holders of Common StockStock in an aggregate amount that, and the fair market value of the sum of combined together with (i) the aggregate consideration paid for all other such Common Stock, (ii) the aggregate fair market value of all-cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid made within the twelve (12) then preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously subsection (e) has been made, made and (iiiii) any cash and the aggregate fair market value of other consideration paid or payable in respect of any amounts previously paid tender or exchange offer by the Company or any of its Subsidiaries for the repurchase of Common Stock of a type described in this paragraph (d) concluded within the twelve (12) preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 1015% of Market Capitalization 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 (g) below) times the number of shares of Common Stock then outstanding) on the record date offixed for the determination of the stockholders entitled to such distribution, and after giving effect to, in each such repurchase, then case the Conversion Price immediately following such record date shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share of the Common Stock on such record date less the amount of the cash and/or fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of other consideration 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 subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(f) In case the Company or any Subsidiary of the Company shall complete a tender or exchange offer 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 tender or exchange offer, as of the expiration of such other tender or exchange offer, expiring within the 12 months preceding the expiration of such Offer and in respect of which no Conversion Price adjustment pursuant to this subsection (f) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (e) 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 (e) has been made, exceeds 15% of the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Time times the number of shares of Common Stock outstanding before (including any tendered shares) on the Expiration Time, the Conversion Price in effect immediately following such repurchase and the number of shares of Common Stock the subject of Expiration Time shall be reduced by multiplying such repurchase, and the denominator Conversion Price by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date 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 repurchase. Such adjustment shall 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 after prior to the date opening of such repurchasebusiness on the day following the Expiration Time. For purposes of this subsection (f), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(g) For the purpose of any computation under subsections (c), (d), (e) and (f) 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 "Aggregate `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 13.3, 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 or the Nasdaq Stock Market's National Market Premium" if the Common Stock is listed or admitted to trading thereon) without the excessright to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b), (c), (d), (e) and (f) above, the Company from time to time and to the extent permitted by applicable Law, shall be permitted to reduce the Conversion Price by any amount for any period of at least 20 Business Days, in which case the Company shall give at least 15 days notice of such reduction, if any, the Board of Directors has made a determination that such reduction would be in the best interests of the aggregate repurchase price paid Company, which determination shall be conclusive. The Company, at its option, shall be permitted to make such other reductions in the Conversion Price, in addition to those set forth above in subsections (a), (b), (c), (d), (e), (f) and the first sentence of this subsection (h), as the Board of Directors deems advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such a dividend or distribution for allUnited States federal income tax purposes.
(i) In any case in which this Section 13.5 shall require that an adjustment 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 of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the 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 appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company 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 (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.
Appears in 1 contract
Samples: Indenture (Occusystems Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(ai) In case the Company Corporation shall (i) pay at any time or from time to time after the original issuance of the Convertible Preferred Stock declare a dividend or other make a distribution on the outstanding shares of Common Stock or securities convertible into Common Stock, in either case, in shares of Common Stock to holders of Common Stock, (ii) subdivide its or effect a subdivision, combination, consolidation or reclassification of the outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller or lesser number of shares or (iv) reclassify its outstanding of Common Stock, then, and in each such case, the Conversion Price in effect immediately prior thereto to such event or the record date therefor, whichever is earlier, shall be adjusted so that by multiplying such Conversion Price by a fraction, the Holder numerator of any Security thereafter surrendered for conversion shall be entitled to receive which is the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted that were outstanding immediately prior to such event and the happening denominator of which is the number of shares of Common Stock outstanding immediately after such event. An adjustment made pursuant to this subsection (aSection 7(b)(i) shall become effective immediately after the record date (x) in the case of a any such dividend or distribution and shall become effective distribution, immediately after the effective close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution, or (y) in the case of any such subdivision, combination reclassification, consolidation or reclassificationcombination, at the close of business on the day upon which such corporate action becomes effective.
(bii) In case the Company Corporation shall at any time or from time to time after the original issuance of the Convertible Preferred Stock issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or options, rights, warrants or other securities convertible into or exchangeable for shares of Common Stock) at a price per share (or having an exercise or conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect as of the Business Day immediately prior thereto shall be adjusted so that preceding such issuance of Common Stock or securities, other than (x) shares of Common Stock, options or other securities issued under any employee or director benefit plan or program of the Conversion Price shall equal Corporation approved by the price determined by multiplying Board of Directors (or any duly authorized committee thereof) of the Corporation or shares of Common Stock issued upon the exercise thereof, (y) shares of Common Stock issuable upon the conversion of the Convertible Preferred Stock, the Series B Preferred Stock, the Corporation's 7% Convertible Subordinated Notes Due 2003 or the Corporation's 7% Convertible Subordinated Debentures due 2011 or (z) shares of Common Stock issued pursuant to Sections 4(b)(i), 4(c)(i) or 9(a) (the issuances under clauses (x), (y) and (z) being referred to as "Excluded Issuances"), then, and in each such case, the Conversion Price in effect immediately prior to such record date issuance of Common Stock or securities shall be reduced so as to be equal to an amount determined by multiplying such Conversion Price by a fraction, fraction of which the numerator shall be the sum of (A) the number of shares of Common Stock outstanding on a fully diluted basis immediately prior to such issuance and (B) the number of additional shares of Common Stock which the aggregate consideration for the number of shares of Common Stock so offered would purchase at the then Conversion Price per share of Common Stock, and the denominator shall be the number of shares of Common Stock outstanding on a fully diluted basis immediately after such record date, plus issuance. An adjustment made pursuant to this Section 7(b)(ii) shall become effective (x) in the number case of shares which the aggregate subscription or purchase price for the total number an offering of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the other securities convertible securities offered by such rights, warrants into or options) would purchase at such current market price, and the denominator of which shall be the number of shares of exchangeable for Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the or any other issuance contemplated by this Section 7(b)(ii) where a record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date is fixed for the determination of stockholders entitled to receive participate in such distribution.
issuance, immediately after the close of business such record date and (dy) In case in all other cases, the Company Business Day immediately preceding the date of issuance of shares of Common Stock (or any of its Subsidiaries shall repurchase (including by way of tender offer) options, rights, warrants or other securities convertible into or exchangeable for shares of Common Stock, and ) contemplated by this Section 7(b)(ii).
(iii) For the fair market value purposes of any adjustment of the sum Conversion Price pursuant to paragraph (ii) of this Section 7(b), the following provisions shall be applicable:
(i1) In the case of the issuance of Common Stock for cash in a public offering or private placement, the aggregate consideration shall be deemed to be the amount of cash paid therefor before deducting therefrom any discounts, commissions or placement fees payable by the Corporation to any underwriter or placement agent in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the Fair Market Value thereof.
(3) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities (except with respect to Excluded Issuances):
(A) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the maximum number of shares of Common Stock outstanding before deliverable upon exercise of such repurchase options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 7(b)(iii)(1) and (2) above), if any, received by the Corporation upon the issuance of such options or rights plus the exercise price provided in such options or rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities or upon the subject exercise of options to purchase or rights to subscribe for such repurchase, convertible or exchangeable securities and the denominator of which subsequent conversion or exchange thereof shall be deemed to have been issued at the current market price per share time such securities, options, or rights were issued and for a consideration equal to the consideration received by the Corporation for any such securities and related options or rights (as defined in subsection (e) below) excluding any cash received on account of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (daccrued interest or accrued dividends), plus the "Aggregate Market Premium" is the excessadditional consideration, if any, to be received by the Corporation upon the conversion or exchange of such securities or the aggregate repurchase exercise of any related options or rights (the consideration in each case to be determined in the manner provided above); (C) on any increase in the number of shares or decrease in exercise price paid of Common Stock deliverable upon exercise of any such options or rights or conversions of or exchanges for allsuch securities, other than a change resulting from the anti-dilution provisions thereof, the applicable Conversion Price shall forthwith be readjusted retroactively to give effect to such increase or decrease; and
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Common Capital Stock, (ii2) subdivide its outstanding Common shares of Capital Stock into a greater number of shares, shares or (iii3) combine its outstanding Common shares of Capital Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivisiona subdivision or combination. If after an adjustment a holder upon conversion of the Capital Stock may receive shares of two or more classes of Capital Stock of the Company, combination or reclassificationthe Company shall determine the allocation of the adjusted Conversion Price between the classes of Capital Stock. After such allocation, the conversion privilege and Conversion Price of each class of Capital Stock shall thereafter be subject to adjustment on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Capital Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Capital Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined pursuant to subsection (d) below) of the Capital Stock on the record date mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, in accordance with the following formula: N x P AP = -------------------- CP x O + M where: AP = the adjusted Conversion Price. CP = the current Conversion Price. O = the number of shares of Capital Stock outstanding on the record date for the distribution. N = the number of additional shares of Capital Stock offered. P = the offering price per share of the additional shares. M = the current market price per share of Capital Stock on the record date. Such adjustment shall become effective immediately, except as provided in subsection (e) below) at , after the record date for the determination of stockholders holders entitled to receive such rights, warrants rights or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Capital Stock, evidences of indebtedness, equity securities other than Capital Stock any shares of capital stock of the Company or other assets (other than Common Stock) or evidences of its indebtedness, cash, other securities cash dividends or other assetsdistributions to the extent paid from current or retained earnings of the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Capital Stock rights or warrants or options to subscribe for or purchase any of its to securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that in accordance with the same shall equal following formula: CP x M - F AP = -------------------- M where: AP = the price determined by multiplying adjusted Conversion Price. CP = the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, the numerator of which shall be Price. M = the current market price per share (as defined in subsection (e) below) of the Common Capital Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (ii3) split or otherwise subdivide its outstanding shares of Common Stock into a greater number of shares, shares of Common Stock or (iii4) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding of Common Stock, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive immediately following such action had such Security Debentures been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below for the determination of holders of Common Stock entitled to receive such rights, options or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ed) below) at of the Common Stock on such record date for the determination of stockholders entitled to receive such rights, warrants or optionsdate, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of offered shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and adjustments shall become effective immediately after such record date. If at the end of the period during which such rights, warrants or options rights are exercisable not all rights, warrants or options rights shall have been exercised, the adjusted Conversion Price conversion price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting based on the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital any class of stock of the Company (other than Common Stock) or , evidences of its indebtedness, cash, other securities indebtedness or other assetsassets (other than dividends or cash distributions payable out of consolidated net income or retained earnings), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ed) below) of the 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 of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately after the record date for the determination of stockholders the holders of Common Stock entitled to receive such distribution.
(d) In case . Notwithstanding the foregoing, in the event that the Company shall distribute rights or any of its Subsidiaries shall repurchase warrants (including by way of tender offerother than those referred to in subsection (b) shares above) ("Rights") pro rata to holders of Common Stock, and the fair market value Company may, in lieu of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no making any adjustment pursuant to this Section 4.6 previously has been made4.6, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock make proper provision so that each holder of a type described Debenture who converts such Debenture (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 this paragraph (d) within addition to the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect issuable upon such conversion (the "Conversion Shares"), a number of which no adjustment pursuant Rights to this Section 4.6 previously has been made, exceeds 10% of Market Capitalization be determined as follows: (i) if such conversion occurs on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately 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 Common Stock equal to the number of Conversion Shares is entitled at the time of such distribution or purchase by a fractionconversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the numerator same number of Rights to which shall be the current market price per share (as defined in subsection (e) below) a holder of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase into which the principal amount of the Debenture 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 number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the Rights.
(d) The current market price per share (as defined of Common Stock on any date shall be deemed to be the average of the daily closing prices for thirty consecutive trading days commencing 45 trading days before the day in subsection (e) below) question. The closing price for each day shall be 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 New York Stock Exchange Composite Tape, or if the 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 sales price of the Common Stock as quoted by the NASDAQ National Market System, or in case no reported sale takes place, the average of the closing bid and asked prices as quoted by the NASDAQ National Market System or any comparable system, or if the Common Stock is not quoted on the NASDAQ National Market System or any comparable system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose.
(e) In any case in which this Section 4.6 shall require that an adjustment be made immediately following a record date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For established for purposes of this subsection (d)Section 4.6, the "Aggregate Market Premium" is Company may elect to defer (but only until five Business Days following the excess, if any, filing by the Company with the Trustee of the aggregate repurchase price paid for allcertificate described in Section 4.10 below) issuing to the holder of any Debenture 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 (Mci Worldcom Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price") for a series of Securities shall be that price as set forth in paragraph 8 a Board Resolution, Officer's Certificate or executed supplemental indenture referred to in Section 301 by or pursuant to which the form and terms of the form Securities of Security attached hereto such series were established, and, except as Exhibit A and otherwise provided therein, shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of on the Common Stock, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii3) combine its outstanding shares of Common Stock into a smaller number of shares, (4) issue by reclassification of its Common Stock any shares of capital stock of the Company or (iv5) reclassify its outstanding Common Stockredeem any Associated rights, the Conversion conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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, combination or 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 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 Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ed) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, of which
(2) the numerator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(3) the denominator of which shall be (A) the number of shares of 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 Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately immediately, except as provided in subsection (e) below, after such the record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) date for the total number determination of shares of Common Stock offered (holders entitled to receive such rights or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares Stock, evidences of capital stock of indebtedness, equity securities (including equity interests in the Company (Company's Subsidiaries) other than Common Stock) or evidences of its indebtedness, cash, other securities or other assetsassets (other than cash dividends paid out of surplus of the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (fabove) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ed) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed determined or of such rights, subscription rights or warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (of the Common Stock. Such adjustment shall become effective immediately, except as defined provided in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately , after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case For the Company or purpose of any of its Subsidiaries shall repurchase computation under subsections (including by way of tender offerb) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined of Common Stock on any date shall be deemed to be the average of the Last Sale Prices for the 30 consecutive Trading Days commencing 45 Trading Days before the date in subsection question.
(e) below) In any case in which this Section 1404 shall require that an adjustment 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 Common Stock on event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 1403 or issuing to the Holder of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Security the number of shares of Common Stock outstanding before and other capital stock of the Company issuable upon such repurchase and conversion in excess of the number of shares of Common Stock and other capital stock of the subject Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii) not later than five Business Days after such repurchaseadjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 1403 and issue to such Holder the denominator additional shares of which Common Stock and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least 1% of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Conversion Price; provided, that any adjustments which by reason of this subsection (d)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 Article Fourteen (other than this subsection (f) 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 Article Fourteen 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 "Aggregate Market Premium" is Company shall promptly (i) file with the excess, if any, 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 aggregate repurchase price paid 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 in the manner provided in Section 106. Anything in this Section 1404 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 1404, 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 the Company to its stockholders shall not be taxable. SECTION 1405. Continuation of Conversion Privilege in Case of Merger, Consolidation or Sale of Assets. If any of the following shall occur, namely: (a) any consolidation or merger of the Company as a result of which the holders of Common Stock shall be entitled to receive stock, other securities or other assets (including cash) with respect to or in exchange for allCommon Stock; or (b) sale, lease, exchange or other disposition of all or substantially all of the property and assets of the Company as an entirety, then the Company, or such successor or purchasing corporation, as the case may be, shall, as a condition precedent to such consolidation, merger, sale, lease, exchange or other disposition, execute and deliver to the Trustee a supplemental indenture (which shall conform to the Trust Indenture Act of 1939 as in force at the date of the execution thereof) providing that the Holder of each convertible Security then Outstanding shall have the right to convert such Security into the kind and amount of shares of stock and other securities and property (including cash) receivable upon or in connection with such consolidation, merger, sale, lease, exchange or other disposition by a holder of the number of shares of Common Stock issuable upon conversion of such Security immediately prior to such consolidation, merger, sale, lease, exchange or other disposition. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Fourteen. If, in the case of any such consolidation, merger, sale, lease, exchange or other disposition, the stock or other securities and property (including cash) receivable thereupon or in connection therewith by a holder of shares of Common Stock includes shares of stock or other securities and property (including cash) of a corporation other than the successor or purchasing corporation, as the case may be, in such consolidation, merger, sale, lease, exchange or other disposition, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 1405 shall similarly apply to successive consolidations, mergers, sales, leases, exchanges or other dispositions. Notice of the execution of each such supplemental indenture shall be mailed to each Holder of Securities in the manner provided in Section 106. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, sale, lease, exchange or other disposition or to any adjustment to be made with respect thereto, but, subject to the provisions of Sections 601 and 603, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer's Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.
Appears in 1 contract
Samples: Indenture (Eog Resources Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other in shares of Common Stock to all holders of Common Stock, (ii) make a distribution in shares of Common Stock to all holders of Common Stock, (iiiii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it he or she would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (ef) belowof this Section 4.6) at the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price Conversion Price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any company other than the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (ef) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or assets or evidences of indebtedness, securities or assets indebtedness so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (ef) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in subsection (b) of this Section 4.6) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.6, make proper provision so that each holder of a Security who converts 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 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 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 Common Stock into which the principal amount of the 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 distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase Common Stock cash (including by way of tender offer) shares of Common Stock, and other than in connection with the fair market value liquidation or dissolution of the sum of (iCompany) in an aggregate amount that, together with the aggregate consideration paid for such amount of any other cash distributions to all or substantially all holders of its 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 Stock made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on such date of(excluding shares held in the Treasury of the Company), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase Determination Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the date of such repurchase, Determination Date less the quotient obtained by dividing amount of cash so distributed within such 12 months (including, without limitation, the Aggregate Market Premium involved in such repurchase Triggering Distribution) applicable to one share of Common Stock (as defined hereinafter) by determined on the difference between basis of the number of shares of Common Stock outstanding before on the Determination Date) and the denominator shall be such repurchase current market price per share of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(e) In case the Company shall make a Triggering Distribution of cash or other consideration to all or substantially all holders of its Common Stock in respect of a tender or exchange offer by the Company or any subsidiary for the Common Stock ("Tender Offer") in an aggregate amount that, together with the aggregate amount of any other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds 10% of the product of the current market price per share of Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Determination Date multiplied by the number of shares of Common Stock outstanding on such date (excluding shares held in the subject Treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such repurchase, and Conversion Price in effect immediately prior to the denominator Determination Date by a fraction of which the numerator shall be the current market price per share (as defined in subsection (e) below) of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the date Determination Date less the amount of cash or other consideration so distributed within such repurchase. Such adjustment 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such current market price per share of the Common Stock (as determined in accordance with subsection (f) of this Section 4.6) on the Determination Date, such reduction to become effective immediately after prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(f) For the purpose of such repurchase. For purposes any computation under subsections (b), (c), (d) and (e) of this subsection (d)Section 4.6, the "Aggregate Market Premium" is current market price per share of Common Stock on any date shall be deemed to be the excess, if any, average of the aggregate repurchase price paid daily closing prices for allthe 30 consecutive Trading Days commencing 45 Trading Days before (i) the
Appears in 1 contract
Samples: Indenture (Family Golf Centers Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 9 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares shares, or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, warrants or options to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or 41 47 substantially all holders of its Common Stock, Stock rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (asubsection(a) above; and (iii) dividends and distributions paid in cash from retained earnings in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, or any employee benefit plan for the benefit of employees of the Company or any of its Subsidiaries or Affiliates (a "Company Benefit Plan"), of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 1012.5% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case . Notwithstanding the foregoing, in the event that the Company shall distribute (AA) rights, warrants or any of its Subsidiaries shall repurchase options (including by way of tender offerother than those referred to in subsection (b) shares above) ("Rights") pro rata to holders of Common Stock, and the fair market value Company may, in lieu of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no making any adjustment pursuant to this Section 4.6 previously has been made4.6, and or (iiiBB) rights issued pursuant to the aggregate fair market value of any amounts previously paid for the repurchase Company's Rights Agreement, dated September 25, 1998, pro rata to holders of Common Stock the Company shall, make proper provision so that each holder of a type described Security who converts 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 this paragraph addition to the Conversion Shares, a number of Rights to be determined as follows: (dx) within the twelve (12) months preceding if such conversion occurs on or prior to the date for the distribution to the holders of purchase 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 Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in respect accordance with the terms and provisions of which no adjustment pursuant and applicable to this Section 4.6 previously has been madethe Rights; and (y) if such conversion occurs after the Distribution Date, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior number of Rights to the date which a holder of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase into which the principal amount of the 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 the number of shares of Common Stock the subject of such repurchaseprovisions of, and applicable to, the denominator Rights. If the Company implements a new stockholder rights plan, the Company agrees that such rights plan will provide that upon conversion of which shall be the current market price per share (as defined in subsection (e) below) Notes, the Holders of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allissued upon
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company Issuer shall (i1) pay a dividend or other distribution on any class of its capital stock in shares of Common Stock to holders of Common Stockany class, (ii2) subdivide its outstanding shares of Class A Common Stock into a greater number of shares, shares or (iii3) combine its outstanding shares of Class A Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted as provided below so that the Holder of any Security Conversion Price thereafter surrendered for conversion shall be entitled to receive determined by multiplying the Conversion Price at which the Securities were theretofore convertible by a fraction, the denominator of which shall be the number of shares of Class A Common Stock outstanding immediately following such action and the numerator of which it would have owned or have been entitled to receive had such Security been converted shall be the number of shares of Class A Common Stock outstanding immediately prior to the happening of such eventthereto. An Such adjustment shall be made pursuant to this subsection (a) whenever any event listed above shall occur and shall become effective immediately retroactively 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Issuer shall issue (i) rights or warrants to all or substantially all holders of its Class A Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than expiring within 45 days after the record date described below and expiring not more than 45 days after for determining stockholders entitled to receive such record daterights or warrants) to subscribe for or purchase shares of its Common Stock (or securities convertible into Common Stock) of any class at a price per share less than the current market price per share of the Class A Common Stock (as determined in accordance with pursuant to subsection (ed) below) at on the record date therefor (the "Current Market Price"), or in case the Issuer shall issue to all holders of its Class A Common Stock other securities convertible into or exchangeable for shares of its Common Stock of any class for a consideration per share of Common Stock deliverable upon conversion or exchange thereof less than the determination of stockholders entitled to receive such rightsCurrent Market Price, warrants or options, then the Conversion Price in effect immediately prior thereto shall be adjusted as provided below so that the Conversion Price therefor shall be equal to the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to such record date by at which the Securities were theretofore convertible by
(2) a fraction, the numerator of which (A) the denominator shall be the sum of (i) the number of shares of Common Stock of all classes outstanding on such record date, plus the number date of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price issuance of the convertible securities offered by such rightsor exchangeable securities, rights or warrants or optionsand (ii) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by for subscription or purchase or issuable upon such rightsconversion or exchange, warrants or options and (or into which B) the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment numerator shall be made successively whenever any the sum of (i) the number of shares of Common Stock of all classes outstanding on the date of issuance of such rightsconvertible or exchangeable securities, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (ii) the number of additional shares of Common Stock actually issued (or of all classes which the aggregate offering price of the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for so offered would purchase at the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Current Market Price of the Company (other than Class A Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no . Such adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 made whenever such convertible or exchangeable securities, rights or warrants are issued and shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution or purchase by a fractionbecome effective immediately, the numerator of which shall be the current market price per share (except as defined provided in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case securities. However, upon the Company expiration of any right or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of warrant to purchase Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect issuance of which no resulted in an adjustment in the Conversion Price pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d13.04(b), the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for allany such right or warrant
Appears in 1 contract
Samples: Convertible Subordinated Indenture (Chancellor Media Corp/)
Adjustment of Conversion Price. The conversion price (applicable to the "Conversion Price") Debt Securities of any series shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company Unilever N.V. shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Common StockN.V. Shares in N.V. Shares, (ii2) subdivide its outstanding Common Stock N.V. Shares into a greater number of shares, (iii3) combine its outstanding Common Stock N.V. Shares into a smaller number of shares or (iv4) reclassify issue any shares by reclassification of its outstanding Common StockN.V. Shares, the Conversion Price conversion price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Debt Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock N.V. Shares which it he would have owned or have been entitled to receive immediately following such action had such Debt Security been converted immediately prior to the happening of such eventthereto. An Any 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company Unilever N.V. shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options N.V. Shares entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) N.V. Shares at a price per share less than the current market price per share of Common Stock N.V. Share (as determined in accordance with pursuant to subsection (ed) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto conversion price shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price same shall equal the price determined by multiplying multiplying:
(1) 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
(2) the numerator of which shall be (A) the number of shares of Common Stock N.V. Shares outstanding on the date of issuance of such record daterights or warrants immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for (in United States dollars) of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price (determined 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
(3) the denominator of which shall be (A) the number of shares of Common Stock N.V. Shares 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 Common Stock offered by such rights, warrants or options (or into N.V. Shares which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such record daterights or warrants. If In determining whether any rights or warrants entitle the holders to subscribe for or purchase N.V. Shares at less than such current market price, and in determining the end aggregate offering price of the period during which such rightsN.V. Shares, warrants there shall be taken into account any consideration received by Unilever N.V. for such rights or options are exercisable not all rights, warrants or options shall have been exercisedwarrants, the adjusted Conversion Price shall value of such consideration, if other than cash, to be immediately readjusted to what it would have been upon application determined, in good faith, by the Board of the foregoing adjustment substituting the number Directors of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).Unilever N.V.
(c) In case the Company Unilever N.V. shall distribute to all or substantially all holders of its Common Stock any shares N.V. Shares evidences of capital stock of the Company indebtedness, equity securities other than N.V. Shares or other assets (other than Common Stock) cash dividends or evidences cash distributions payable out of its indebtedness, cash, other securities or other assetsretained earnings), or shall distribute to all or substantially all holders of its Common Stock, rights, N.V. Shares rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share N.V. Share (determined as defined provided in subsection (ed) below) of the Common Stock on the record date mentioned below less the then fair market value on such record date (in United States dollars) (as determined by the Board of Directors of the Company, Unilever N.V. whose determination shall shall, if made in good faith, be conclusive evidence of such fair market valueconclusive) of the portion of the capital stock or evidences of indebtedness, equity securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share N.V. Share and of Common Stock, and which the denominator of which shall be the such current market price per share N.V. Share (determined as defined provided in subsection (d) below). Such adjustment shall become effective immediately, except as provided in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately , after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case For the Company or purpose of any of its Subsidiaries shall repurchase computation under subsections (including by way of tender offerb) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeabove, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) N.V. Share at any date shall be deemed to be the average of the Common Stock daily Closing Prices on the 5 consecutive Trading Days commencing not more than 20 Trading Days before the date of such repurchase, less in question. The term “Closing Price” on any Trading Day shall mean (i) the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market last reported sales price per share (as defined N.V. Share on such Trading Day on the New York Stock Exchange, or if not reported on such Exchange, on the Composite Tape, or, in subsection (e) below) case no such reported sale takes place on such Trading Day, the average of the Common Stock reported closing bid and asked quotations on the date of New York Stock Exchange on such repurchase. Such adjustment shall become effective immediately after Trading Day, (ii) if the date of such repurchase. For purposes of this subsection (d)N.V. Shares are not listed or admitted for trading on the New York Stock Exchange, the "Aggregate Market Premium" is last reported sales price on such other national securities exchange on which the excess, if any, of the aggregate repurchase price paid for allN.V. Shares
Appears in 1 contract
Samples: Indenture (Unilever PLC)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (e) belowof this Section 4.6) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at such the current market priceprice per share (as defined in subsection (e) of this Section 4.6) of Common Stock on such record date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends on distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6, or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d1) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash in an aggregate amount that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (B) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 10.0% of the product of the current market price per share of Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the current market price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (determined as aforesaid in this Section 4.6(d)(1)) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such current market price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(2) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by way the Board of tender offerDirectors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) shares of Common Stockany other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 10.0% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (e) of this Section 4.6) as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the current market price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of such repurchase, the Company) at the Expiration Time and the denominator of which shall be the current market price per share of Common Stock (as defined determined in accordance with subsection (e) belowof this Section 4.6) of the Common Stock on the date of Trading Day next succeeding the Expiration Date, such repurchase. Such adjustment shall reduction to become effective immediately after prior to the date opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such repurchasetender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(d)(2) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(d)(2).
(3) For purposes of this Section 4.6(d), the term "tender offer" shall mean and include both tender offers and exchange offers, all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(d) For the purpose of any computation under subsections (b), (c) and (d) of this Section 4.6, 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 the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as the case may be, with respect to distributions or tender offers under subsection (d)) of this Section 4.6 or (ii) the record date with respect to distributions, the "Aggregate Market Premium" is the excess, if any, issuances or other events requiring such computation under subsection (b) or (c) of the aggregate repurchase price paid for allthis Section 4.
Appears in 1 contract
Samples: Indenture (Efficient Networks Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall Price will be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case If and whenever on or after the Closing Date the Company shall issues or sells, or in accordance with subsection (ib) pay a dividend of this Section 9.6 is deemed to have issued or other distribution in sold, any shares of its Common Stock to holders of Common Stock, for a consideration per share less than (iia) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto to the time of such issue or sale or (b) the average Current Market Price of the Common Stock for the twenty Trading Days preceding the date of the first announcement of such issue or sale, then, effective upon the close of business on the date of such issue or sale, the Conversion Price shall be adjusted so that reduced to whichever of the Holder following Conversion Prices is lower:
(i) the Conversion Price determined by dividing (1) the sum of any Security thereafter surrendered for conversion shall be entitled (x) the product derived by multiplying the Conversion Price in effect immediately prior to receive such issue or sale times the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted outstanding immediately prior to such issue or sale, plus (y) the happening of such event. 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 subdivisionconsideration, combination or reclassification.
(b) In case if any, received by the Company shall upon such issue to all or substantially all holders sale, by (2) the number of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock outstanding immediately after such issue or sale; or
(or securities convertible into Common Stockii) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date issue or sale by a fraction, the numerator of which shall be the sum of (1) the number of shares of Common Stock outstanding on immediately prior to such record dateissue or sale multiplied by the average Current Market Price of the Common Stock for the 20 Trading Days preceding the date of the first announcement of such issue or sale, plus (2) the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered consideration, if any, received by the rights, warrants Company upon such issue or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market pricesale, and the denominator of which shall be the product derived by multiplying such average Current Market Price of the Common Stock times the number of shares of Common Stock outstanding on immediately after such record issue or sale.
(b) For purposes of determining the adjusted Conversion Price under subsection (a) of this Section 9.6, the following shall be applicable:
(i) If the Company in any manner grants any rights or options to subscribe for or to purchase Common Stock or any stock or other securities convertible into or exchangeable for Common Stock (such rights or options being herein called "Options" and such convertible or exchangeable stock or securities being herein called "Convertible Securities") and the price per share for which Common Stock is issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities is less than (a) the Conversion Price in effect immediately prior to the time of the granting of such Options or (b) the average Current Market Price of the Common Stock for the 20 Trading Days preceding the date plus of the first announcement of such grant, then the total maximum number of additional shares of Common Stock offered by issuable upon the exercise of such rights, warrants Options or options (upon conversion or into which exchange of the convertible securities so offered by total maximum amount of such rights, warrants or options are convertible). Such adjustment Convertible Securities issuable upon the exercise of such Options shall be made successively whenever any such rights, warrants or options are issued, deemed to be outstanding and shall become effective immediately after such record date. If to have been issued and sold by the Company at the end time of the period during which granting of such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercisedOptions for such price per share. For purposes of this paragraph, the adjusted "price per share for which Common Stock is issuable" shall be determined by dividing (A) the total amount, if any, received or receivable by the Company in consideration of the granting of such Options, plus the minimum amount of additional consideration, if any, payable to the Company upon exercise of all such Options, plus in the case of such Options which relate to Convertible Securities, the minimum amount of additional consideration, if any, payable to the Company upon the issuance or sale of such Convertible Securities and the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options. No further adjustment of the Conversion Price shall be made when Convertible Securities are actually issued upon the exercise of such Options or when Common Stock is actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities.
(ii) If the Company in any manner issues or sells any Convertible Securities and the price per share for which Common Stock is issuable upon such conversion or exchange is less than (a) the Conversion Price in effect immediately readjusted prior to what it would have been upon application the time of such issue or sale or (b) the average Current Market Price of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or for the twenty Trading Days preceding the date of the first announcement of such grant, then the maximum number of shares of Common Stock issuable upon conversion or exchange of convertible securities actually issuedsuch Convertible Securities shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes of this paragraph, the "price per share for which Common Stock is issuable" shall be determined by dividing (A) the total amount received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock offered (issuable upon the conversion or exchange of all such Convertible Securities. No further adjustment of the convertible securities offered)Conversion Price shall be made when Common Stock is actually issued upon the conversion or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustments of the Conversion Price had been or are to be made pursuant to other provisions of this Section 9.6, no further adjustment of the Conversion Price shall be made by reason of such issue or sale.
(ciii) If the purchase price provided for in any Options, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exchangeable for Common Stock change at any time, the Conversion Price in effect at the time of such change shall be readjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or changed conversion rate, as the case may be, at the time initially granted, issued or sold.
(iv) Upon the expiration of any Option or the termination of any right to convert or exchange any Convertible Security without the exercise of any such Option or right, the Conversion Price then in effect hereunder shall be adjusted to the Conversion Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Security, to the extent outstanding immediately prior to such expiration or termination, never been issued.
(v) If any Common Stock, Option or Convertible Security is issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor. In case any Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be the Fair Market Value of such consideration as of the date of receipt. If any Common Stock, Option or Convertible Security is issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the Fair Market Value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Options or Convertible Securities, as the case may be.
(vi) In case any Option or Convertible Security is issued in connection with the Company issue or sale of other securities of the Company, together comprising one integrated transaction in which no specific consideration is allocated to such Option or Convertible Security, as the case may be, by the parties thereto, the Option or Convertible Security, as the case may be, shall distribute be deemed to all or substantially all holders have been issued for a consideration of its $.01.
(vii) For purposes of this Section 9.6, the number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of capital stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries Subsidiaries, and the disposition of any shares so owned or Affiliatesheld shall be considered an issue or sale of Common Stock.
(c) If the Company at any time subdivides (by any stock split, stock dividend, stock distribution, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock concluded within the preceding 12 monthsinto a greater number of shares, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 such subdivision shall be proportionately reduced, and if the Company at any time combines (by reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination shall be proportionately increased. An adjustment made pursuant to this subsection (c) of this Section 9.6(c) shall become effective (x) in the case of any stock dividend or stock distribution, immediately after the close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such stock dividend or stock distribution or (y) in the case of any subdivision, stock split, reclassification or combination, at the close of business as the day upon which such corporate action becomes effective.
(d) Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or a substantial portion of the Company's assets to another Person or other transaction which is effected in such a manner that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock is referred to herein as a "Major Transaction". Prior to the consummation of any Major Transaction, the Company shall make appropriate provisions (in form and substance satisfactory to the holders of a majority of the outstanding principal amount of the Notes) to insure that each of the holders of the Notes shall thereafter have the right to acquire and receive, in lieu of or in addition to (as the case may be) the shares of Common Stock immediately theretofore acquirable and receivable upon the conversion of such holder's Notes, such shares of stock, securities or assets as such holder would have received in connection with such Major Transaction if such holder had converted its Notes immediately prior to such Major Transaction. In each such case, the Company shall also make appropriate provisions (in form and substance satisfactory to the holders of a majority of the outstanding principal amount of the Notes) to insure that the provisions of this Section 9.6 hereof shall thereafter be applicable to the Notes (including, in the case of any such consolidation, merger or sale in which the successor entity or purchasing entity is other than the Company, an immediate adjustment of the Conversion Price to the value for the Common Stock reflected by the terms of such consolidation, merger or sale, and a corresponding immediate adjustment in the number of shares of Common Stock acquirable and receivable upon conversion of the Notes, if the value so reflected is less than the Conversion Price in effect immediately prior to such consolidation, merger or sale). The Company shall not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor corporation (if other than the Company) resulting from consolidation or merger or the corporation purchasing such assets assumes by written instrument (in form reasonably satisfactory to the holders of a majority of the outstanding principal amount of the Notes then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.
(e) In case the Company shall at any time or from time to time after the date hereof declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution of stock or other securities or property or Capital Stock Equivalents of the Company or any of its Subsidiaries by way of dividend or spinoff), on its Common Stock, then, and in each such case, the Conversion Price shall be adjusted by multiplying (1) the applicable Conversion Price on the day immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution or purchase by (2) a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) average Current Market Price of the Common Stock on for the record date mentioned below less the fair market value on period of 20 Trading Days preceding such record date (as determined by less the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one Fair Market Value per share of Common StockStock of such dividend or distribution, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) such average Current Market Price of the Common Stock on such record dateStock. Such The Company acknowledges that this Section 9.6(e) shall not constitute a waiver of Section 6.1 of this Agreement. No adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment be made pursuant to this Section 4.6 previously has been made9.6(e) in connection with any transaction to which Section 9.6(c) applies.
(f) If any event occurs of the type contemplated by the provisions of this Section 9.6 but not expressly provided for by such provisions (including, and (iii) without limitation, the aggregate fair market value granting of any amounts previously paid for stock appreciation rights, phantom stock rights or other rights with equity features), then the repurchase Company's Board of Common Stock Directors shall make an appropriate adjustment in the Conversion Price so as to protect the rights of a type described in this paragraph (d) within the twelve (12) months preceding holders of Notes; provided that no such adjustment shall increase the date of purchase of such shares of Common Stock in respect of which no adjustment Conversion Price as otherwise determined pursuant to this Section 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 9.6 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between decrease the number of shares of Common Stock outstanding of the Company issuable upon conversion of each Note.
(g) Anything in this Section 9.6 to the contrary notwithstanding, (a) the Company shall not be required to give effect to any adjustment in the Conversion Price unless and until the net effect of one or more adjustments (each of which shall be carried forward), determined as above provided, shall have resulted in a change of the Conversion Price by at least one percent, and when the cumulative net effect of more than one adjustment so determined shall be to change the Conversion Price by at least one percent, such change in Conversion Price shall thereupon be given effect and (b) there shall be no adjustment in the Conversion Price (x) as a result of any issuance or sale of any Excluded Securities or (y) in respect of the issuance of any Rights after the date hereof; provided, however, that nothing herein shall limit the right of any holder of any Notes to an adjustment in the Conversion Price of such Notes in the event there shall occur a "flip-in" or "flip-over" event under the Rights Agreement or any similar plan or agreement of the Company.
(h) The certificate of any firm of independent public accountants of recognized national standing selected by the Board of Directors (which may be the firm of independent public accountants regularly employed by the Company) shall be presumptively correct for any computation made under this Section 9.6.
(i) If the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such repurchase and dividend or distribution, then thereafter no adjustment in the number of shares of Common Stock issuable upon exercise of the subject right of conversion granted by this Section 9.6 or in the Conversion Price then in effect shall be required by reason of the taking of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allrecord.
Appears in 1 contract
Samples: Securities Purchase Agreement (Recovery Engineering Inc)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (i) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate.
(b) In case the Company shall issue to all or substantially all holders of (1) subdivide its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus subdivision or combination and the denominator shall be the number of shares which outstanding immediately after giving effect to such subdivision or combination. An adjustment made pursuant to this subsection (b) shall become effective immediately, except as provided in subsection (i) below, after the aggregate subscription effective date of a subdivision or combination.
(c) In case the Company shall issue rights, options or warrants to all or substantially all holders of Common Stock entitling them to subscribe for or purchase price for the total number of shares of Common Stock offered by at a price per share less than the rights, warrants or options so issued (or the aggregate conversion then current market price per share of the convertible securities offered by Common Stock (as determined pursuant to subsection (g) below) on the record date fixed for determination of the stockholders entitled to receive such rights, warrants option or options) would purchase at warrants, the Conversion Price in effect immediately following such current market record date shall be adjusted to a price, and computed to the denominator nearest cent, so that the same shall equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsection (i) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; PROVIDED, HOWEVER, that if any such rights, options or warrants issued by the Company as described in this subsection (b) are only exercisable upon the occurrence of certain triggering events, then the Conversion Price will not be adjusted as provided in this subsection (c) until such triggering events occur. Upon the expiration or termination of any rights, options are issued, and shall become effective immediately after such record date. If at or warrants without the end exercise of the period during which such rights, warrants options or options are exercisable not all rights, warrants or options shall have been exercisedwarrants, the adjusted Conversion Price then in effect shall be adjusted immediately readjusted to what it the Conversion Price which would have been upon application in effect at the time of such expiration or termination had such rights, options or warrants, to the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (extent outstanding immediately prior to such expiration or the number of shares of Common Stock issuable upon conversion of convertible securities actually termination, never been issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(cd) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its Common Stock any shares assets, evidences of capital stock of the Company indebtedness, cash or securities (other than Common Stock(x) dividends or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to distributions exclusively in subsection (b) above cash or (fy) below; (ii) those dividends, distributions, subdivisions and combinations referred any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (c) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price in effect immediately following the record date fixed for the determination of the stockholders entitled to such distribution) shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value (determined as provided in subsection (g) below) on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsection (i) below, after the record date for the determination of stockholders entitled to receive such distribution.
(de) In case the Company or any Subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with subsection (d) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all or substantially all holders of Common StockStock in an aggregate amount that, and the fair market value of the sum of combined together with (i) the aggregate consideration paid for all other such Common Stock, (ii) the aggregate fair market value of all-cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid made within the twelve (12) then preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously subsection (e) has been made, made and (iiiii) any cash and the aggregate fair market value of other consideration paid or payable in respect of any amounts previously paid tender or exchange offer by the Company or any of its Subsidiaries for the repurchase of Common Stock of a type described in this paragraph (d) concluded within the twelve (12) preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 1015% of Market Capitalization 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 (g) below) times the number of shares of Common Stock then outstanding) on the record date offixed for the determination of the stockholders entitled to such distribution, and after giving effect to, in each such repurchase, then case the Conversion Price immediately following such record date shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share of the Common Stock on such record date less the amount of the cash and/or fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of other consideration 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.
(f) In case the Company or any Subsidiary of the Company shall complete a tender or exchange offer 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 tender or exchange offer, as of the expiration of such other tender or exchange offer, expiring within the 12 months preceding the expiration of such Offer and in respect of which no Conversion Price adjustment pursuant to this subsection (f) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (e) 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 (e) has been made, exceeds 15% of the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Time times the number of shares of Common Stock outstanding before (including any tendered shares) on the Expiration Time, the Conversion Price in effect immediately following such repurchase and the number of shares of Common Stock the subject of Expiration Time shall be reduced by multiplying such repurchase, and the denominator Conversion Price by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date 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 repurchase. Such adjustment shall 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 after prior to the date opening of such repurchasebusiness on the day following the Expiration Time. For purposes of this subsection (f), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(g) For the purpose of any computation under subsections (c), (d), (e) and (f) 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 "Aggregate '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 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 or the Nasdaq Stock Market's National Market Premium" if the Common Stock is listed or admitted to trading thereon) without the excessright to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b), (c), (d), (e) and (f) above, the Company, from time to time and to the extent permitted by law, may reduce the Conversion Price by any amount for at least 20 Business Days, if anythe Board of Directors has made a determination, which determination shall be conclusive, that such reduction would be in the best interests of the aggregate repurchase price paid Company. The Company shall cause notice of such reduction to be mailed to each Holder of Securities, in the manner specified in Section 13.7, at least 15 days prior to the date on which such reduction commences. The Company, at its option, also may make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for allFederal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock.
(i) In any case in which this Section 13.5 shall require that an adjustment 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 of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the 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 appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company 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 (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.
(k) 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.
(l) In the event that the Company distributes rights or warrants (other than those referred to in subsection (c) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Note surrendered for conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of 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 or warrants of separate certificates evidencing such rights or warrants (the "Distribution Date"), the same number of rights or warrants to which a holder of a number of shares of 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 or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Note so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.
Appears in 1 contract
Samples: Indenture (Tower Automotive Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price") for a series of Securities shall be that price as set forth in paragraph 8 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 form Securities of Security attached hereto such series were established, and, except as Exhibit A and otherwise provided therein, shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution distribution) in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, shares or (iii3) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the then current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ef) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, of which
(2) the numerator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights, options or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(3) the denominator of which shall be (A) the number of shares of 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 Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (b) are issuedonly exercisable upon the occurrence of certain triggering events relating to control and provided for in shareholder rights plans, and shall become effective immediately after such record date. If at then the end of 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 will not 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 adjusted as provided in this subsection (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issuedb) for the total number of shares of Common Stock offered (or the convertible securities offered)until such triggering events occur.
(c) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of its Common Stock any evidences of indebtedness, shares of capital stock of the Company (Capital Stock other than Common Stock) or evidences of its indebtedness, cash, other securities cash or other assetsassets (including securities, but other than (x) regular dividends or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to distributions paid exclusively in subsection (b) above cash or (fy) below; (ii) those dividends, distributions, subdivisions and combinations referred any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (determined as defined provided in subsection (ef) below) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately 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 its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with (c) shares above, or cash distributed upon a merger or consolidation to which Section 1505 applies) to all holders of Common StockStock 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 the sum of (i) the aggregate other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of Stock concluded within the preceding paragraph (c) paid within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1015% of Market Capitalization 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, and after giving effect to, of such repurchasedistribution, 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 or purchase by a fraction, fraction of which the numerator of which 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 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 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 defined provided in subsection (ef) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Time times the number of shares of Common Stock outstanding before (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such repurchase and Conversion Price in effect immediately prior to the number of shares of Common Stock the subject of such repurchase, and the denominator Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as defined provided in subsection (ef) below) of the Common Stock on the date 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 repurchase. Such adjustment shall 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 after prior to the date opening of such repurchasebusiness on the day following the Expiration Time. For purposes of this subsection (de), the "Aggregate Market Premium" is fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the excess, if any, Board of Directors of the aggregate repurchase Company 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 paid 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 allthe 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 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 1503 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 or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the 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 appropriate cash payment pursuant to Section 1503 and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company (or other assets or securities) 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% 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 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) 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 (other than those referred to in subsection (b) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Security surrendered for conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of 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 or warrants of separate certificates evidencing such rights or warrants (the "Distribution Date"), the same number of rights or warrants to which a holder of a number of shares of 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 or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Security so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 Per Share of Common Stock (as determined in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Share of Common Stock on such current market pricerecord date, and of which (y) the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid in cash or (2) dividends or distributions referred to in subsection (a) of this Section 5.06), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 5.06 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase Common Stock cash in an aggregate amount that, together with the aggregate amount of (including by way of tender offeri) shares of Common Stock, any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 5.06 has been made and (ii) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 5.06 has been made, exceeds an amount equal to 10.0% of the product of the Current Market Price Per Share of Common Stock on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the Current Market Price Per Share of the Common Stock on the Determination Date less the sum of (i) the aggregate consideration paid for such Common Stock, (ii) amount of cash and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such Current Market Price Per Share of the Common Stock on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(1) In case any tender offer made by the Company for Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash dividends consideration and distributions the aggregate fair market value (as reasonably determined in good faith by the Board of Directors of the type described in clause (iiiCompany, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration) that, together with the preceding paragraph aggregate amount of (ci) paid any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the Company for Common Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 5.06 has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 5.06 has been made, exceeds 10an amount equal to 10.0% of the product of the Current Market Capitalization Price Per Share of Common Stock as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date close of such distribution or purchase business on the Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price Per Share of the Common Stock on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of the Company) at the Expiration Time and the Current Market Price Per Share of Common Stock on the Trading Day next succeeding the Expiration Date, such repurchasereduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 5.06(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 5.06(e).
(2) For purposes of Section 5.06(d) and 5.06(e), the term "tender offer" shall mean and include both tender offers and exchange offers (within the meaning of U.S. Federal securities laws), all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(f) For the denominator purpose of which shall be any computation under subsections (b), (c), (d) and (e) of this Section 5.06, the current market price per share of Common Stock (the "Current Market Price Per Share") on any date shall be deemed to be the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as defined in the case may be, with respect to distributions or tender offers under subsection (e) belowof this Section 5.06 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of this Section 5.06. The Closing Price for each day (the "Closing Price") shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on The New York Stock Exchange (the "NYSE") or The Nasdaq National Market (the "NNM"), as applicable, or, if the Common Stock is not listed or admitted to trading on the date NYSE or the NNM, the principal national securities exchange or quotation system on which the Common Stock is quoted or listed or admitted to trading or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. If no such prices are available, the Current Market Price Per Share shall be the fair value of a share of Common Stock (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such repurchase. Such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee).
(g) In any case in which this Section 5.06 shall require that an adjustment shall become effective immediately after be made following a record date or a Determination Date or Expiration Date, as the date of such repurchase. For case may be, established for purposes of this subsection (d)Section 5.06, the "Aggregate Market Premium" is Company may elect to defer (but only until five Business Days following the excess, if any, filing by the Company with the Trustee of the aggregate repurchase price certificate described in Section 5.09) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration 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 agent to issue due bills or other appropriate evidence prepared by the Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by the Company for allany reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Samples: Indenture (Skyworks Solutions Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other in shares of Common Stock to all holders of Common Stock, (ii) make a distribution in shares of Common Stock to all holders of Common Stock, (iiiii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it he or she would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) belowof this Section 4.6) at the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price Conversion Price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any company other than the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or assets or evidences of indebtedness, securities or assets indebtedness so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in subsection (b) of this Section 4.6) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.6, make proper provision so that each holder of a Security who converts 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 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 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 Common Stock into which the principal amount of the 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 distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common StockStock cash in an aggregate amount that, and the fair market value of the sum of (i) together with the aggregate consideration paid for such amount of any other cash distributions to all or substantially all holders of its 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 Stock made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1020% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on such date of(excluding shares held in the Treasury of the Company), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase Determination Date by a fraction, fraction of which the numerator of which shall be the current market price per share of the Common Stock (as defined determined in accordance with subsection (e) belowof this Section 4.6) on the Determination Date less the amount of cash so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the date basis of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and on the number of shares of Common Stock the subject of such repurchase, Determination Date) and the denominator of which shall be such current market price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(e) For the purpose of any computation under subsections (b), (c) and (d) of this Section 4.6, the current market price per share (as defined in subsection (e) below) of the Common Stock on any date shall be deemed to be the date average of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this daily closing prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date with respect to distributions under subsection (d)) of this Section 4.6 or (ii) the record date with respect to distributions, the "Aggregate Market Premium" is the excess, if any, issuances or other events requiring such computation under subsection (b) or (c) of the aggregate repurchase price paid for allthis Section 4.
Appears in 1 contract
Samples: Indenture (Boston Chicken Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price") for a series of Securities shall be that price as set forth in paragraph 8 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 form Securities of Security attached hereto such series were established, and, except as Exhibit A and otherwise provided therein, shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution distribution) in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, shares or (iii3) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the then current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ef) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, of which
(2) the numerator of which shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights, options or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(3) the denominator of which shall be (A) the number of shares of 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 Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (b) are issuedonly exercisable upon the occurrence of certain triggering events relating to control and provided for in shareholder rights plans, and shall become effective immediately after such record date. If at then the end of 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 will not 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 adjusted as provided in this subsection (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issuedb) for the total number of shares of Common Stock offered (or the convertible securities offered)until such triggering events occur.
(c) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of its Common Stock any evidences of indebtedness, shares of capital stock of the Company (Capital Stock other than Common Stock) or evidences of its indebtedness, cash, other securities cash or other assetsassets (including securities, but other than (x) regular dividends or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to distributions paid exclusively in subsection (b) above cash or (fy) below; (ii) those dividends, distributions, subdivisions and combinations referred any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (determined as defined provided in subsection (ef) below) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately 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 its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with (c) shares above, or cash distributed upon a merger or consolidation to which Section 1505 applies) to all holders of Common StockStock 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 the sum of (i) the aggregate other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of Stock concluded within the preceding paragraph (c) paid within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1015% of Market Capitalization 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, and after giving effect to, of such repurchasedistribution, 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 or purchase by a fraction, fraction of which the numerator of which 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 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 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 defined provided in subsection (ef) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Time times the number of shares of Common Stock outstanding before (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such repurchase and Conversion Price in effect immediately prior to the number of shares of Common Stock the subject of such repurchase, and the denominator Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as defined provided in subsection (ef) below) of the Common Stock on the date 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 repurchase. Such adjustment shall 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 after prior to the date opening of such repurchasebusiness on the day following the Expiration Time. For purposes of this subsection (de), the "Aggregate Market Premium" is fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the excess, if any, Board of Directors of the aggregate repurchase Company 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 paid 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 allthe 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 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 1503 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 or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the 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 appropriate cash payment pursuant to Section 1503 and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company (or other assets or securities) 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% 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 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) 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 (other than those referred to in subsection (b) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Security surrendered for conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of 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 or warrants of separate certificates evidencing such rights or warrants (the "Distribution Date"), the same number of rights or warrants to which a holder of a number of shares of 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 or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Security so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in Section 5.01 (the "“Conversion Price"”) shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company Parent as follows:
(a) In case the Company Parent shall (i) pay a dividend or other distribution on its Ordinary Shares in shares the form of Common Stock to holders of Common StockOrdinary Shares, (ii) make a distribution on its Ordinary Shares in the form of Ordinary Shares, (iii) subdivide its outstanding Common Stock Ordinary Shares into a greater number of sharesOrdinary Shares, or (iiiiv) combine its outstanding Common Stock Ordinary Shares into a smaller number of shares or (iv) reclassify its outstanding Common StockOrdinary Shares, the Conversion Price in effect immediately prior thereto shall be adjusted so that that, assuming the same Ordinary Share-to-ADS ratio applies prior to and after such event, the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock ADSs which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company Parent shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Ordinary Shares entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock Ordinary Shares (or securities convertible into Common StockOrdinary Shares) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock Current Market Price Per Ordinary Share (as determined defined in accordance with subsection (eSection 5.06(g)) below) at on the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock Ordinary Shares outstanding on such record date, date plus the number of shares Ordinary Shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock Ordinary Shares so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of Ordinary Shares issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per Ordinary Share pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Ordinary Share on such current market pricerecord date, and (y) the denominator of which shall be the number of shares of Common Stock Ordinary Shares outstanding on such record date plus the number of additional shares of Common Stock Ordinary Shares offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock Ordinary Shares actually issued (or the number of shares of Common Stock Ordinary Shares issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company Parent shall distribute to all or substantially all holders of its Common Stock Ordinary Shares any shares of capital stock of the Company Parent (other than Common Stock) or in the form of Ordinary Shares), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than Parent but excluding (1) dividends or distributions paid in cash or (2) dividends or distributions referred to in subsection (a) of this Section 5.06), or shall distribute to all or substantially all holders of its Common Stock, rights, Ordinary Shares rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 5.06 and (B) also excluding the fair market value distribution of consideration payable in respect rights to all holders of any repurchases (including by way Ordinary Shares pursuant to the adoption of tender offers) by the Company or any of its Subsidiaries or Affiliatesa stockholders’ rights plan, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distributionif any), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which (x) the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock Current Market Price Per Ordinary Share on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the CompanyParent, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share Ordinary Share (determined on the basis of Common Stockthe number of Ordinary Shares outstanding on the record date), and (y) the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock Current Market Price Per Ordinary Share on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d) In case the Company Parent shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all or substantially all holders of its Subsidiaries shall repurchase Ordinary Shares cash in an aggregate amount that, together with the aggregate amount of (including by way of tender offeri) shares of Common Stock, any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of any other consideration payable in respect of any purchase by Parent for Ordinary Shares consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 5.06 has been made and (ii) all other cash distributions to all or substantially all holders of its Ordinary Shares made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 5.06 has been made, exceeds an amount equal to 10.0% of the product of the Current Market Price Per Ordinary Share on the Business Day immediately preceding the day on which such Triggering Distribution is declared by Parent (the “Determination Date”) multiplied by the number of Ordinary Shares outstanding on the Determination 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 Determination Date by a fraction, of which the numerator shall be the Current Market Price Per Ordinary Share on the Determination Date less the sum of (i) the aggregate consideration paid for such Common Stock, (ii) amount of cash and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one Ordinary Share (determined on the basis of the number of Ordinary Shares outstanding on the Determination Date) and the denominator shall be such Current Market Price Per Ordinary Share on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(e) In case any purchase made by Parent of Ordinary Shares and such purchase shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash dividends consideration and distributions the aggregate fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the type described in clause (iiiTrustee) of any other consideration) that, together with the preceding paragraph aggregate amount of (ci) paid any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of any other consideration payable in respect of any other purchase by Parent for Ordinary Shares consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 5.06 has been made, made and (iiiii) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of Common Stock of a type described in this paragraph (d) its Ordinary Shares made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously 5.06 has been made, exceeds 10an amount equal to 10.0% of the product of the Current Market Capitalization Price Per Ordinary Share as of the most recent date (the “Expiration Date”) where a purchase was made (the last time at which a purchase was made on the date ofExpiration Date is hereinafter sometimes called the “Expiration Time”) multiplied by the number of Ordinary Shares outstanding (including shares purchased within the last 12 months preceding the Expiration Date, and the “Purchased Shares”) at the Expiration Time, then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date close of such distribution or purchase business on the Expiration Date by a fractionfraction of which the numerator shall be the product of the number of Ordinary Shares outstanding (including Purchased Shares) at the Expiration Time multiplied by the Current Market Price Per Ordinary Share on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to shareholders of all Purchased Shares and (y) the product of the number of Ordinary Shares outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price Per Ordinary Share on the Trading Day next succeeding the Expiration Date, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that Parent is obligated to purchase Ordinary Shares, but Parent is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the numerator Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of which Ordinary Shares actually purchased. If the application of this Section 5.06(e) to any purchase would result in an increase in the Conversion Price, no adjustment shall be made for such purchase under this Section 5.06(e).
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 5.06, the current market price per share Ordinary Share (the “Current Market Price Per Ordinary Share”) on any date shall be deemed to be the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as defined in the case may be, with respect to distributions or purchases under subsection (e) belowof this Section 5.06 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of this Section 5.06. The Closing Price for each day (the Common Stock “Closing Price”) shall be the ADS Closing Price for such day as adjusted by the then effective Ordinary Shares-to-ADS ratio. The ADS Closing Price of each day (the “ADS Closing Price”) shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the date New York Stock Exchange (the “NYSE”) or the Nasdaq National Market (the “NNM”), or, if Parent’s ADS is not listed or admitted to trading on the NYSE or the NNM, the principal national securities exchange or quotation system on which Parent’s ADS is quoted or listed or admitted to trading or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by Parent for that purpose. If no such ADS Closing Prices are available, the Current Market Price Per Ordinary Share shall be the fair value of an Ordinary Share (as reasonably determined in good faith by the Board of Directors of Parent whose determination shall be conclusive evidence of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase fair market value and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be evidenced by an Officers’ Certificate of Parent delivered to the current market price per share Trustee).
(g) In case the Ordinary Shares-to-ADS ratio is adjusted, then the Conversion Price shall be adjusted proportionately so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive ADSs representing the number Ordinary Shares as defined if the Security had been converted immediately prior to the Ordinary Shares-to-ADS ratio adjustment, provided, that if the adjustment to the Ordinary Shares-to-ADS ratio is adjusted pursuant to, or in subsection connection with, or as a result of, an event described in subsections (a) to (e) belowof this Section 5.06, and an adjustment to the Conversion Price has been made pursuant to the applicable subsection, no adjustment to the Conversion Price shall be made pursuant to this subsection (g). An adjustment made pursuant to this subsection (g) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the effectiveness of the Ordinary Shares-to-ADS adjustment.
(h) In any case in which this Section 5.06 shall require that an adjustment be made following a record date of such repurchase. For or a Determination Date or Expiration Date, as the case may be, established for purposes of this subsection Section 5.06, Parent may elect to defer (d)but only until five Business Days following the filing by Parent with the Trustee of the certificate described in Section 5.09) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration Date the Ordinary Shares and other capital stock of Parent issuable upon such conversion over and above the Ordinary Shares and other capital stock of Parent issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the Ordinary Shares the issuance of which is so deferred, Parent shall issue or cause its transfer agent to issue due bills or other appropriate evidence prepared by Parent of the right to receive the Ordinary Shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by Parent for any reason, the "Aggregate Market Premium" is Conversion Price shall be readjusted to the excess, Conversion Price which would then be in effect if any, of the aggregate repurchase price paid for allsuch record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of subject to adjustments, calculated by the form of Security attached hereto as Exhibit A and shall be adjusted Company, from time to time by the Company as follows:
(a) In case the Company shall (i) hereafter pay a dividend or other make a distribution to all holders of the outstanding Common Stock in shares of Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that at the Holder opening of any Security thereafter surrendered business on the date following the date fixed for conversion shall be the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination, and
(2) the denominator of which it would have owned or have been entitled to receive had such Security been converted immediately prior to shall be the happening sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) Such reduction shall become effective immediately after the record date in opening of business on the case of a day following the Record Date. If any dividend or distribution and of the type described in this Section 10.04(a) is declared but not so paid or made, the Conversion Price shall become effective immediately after again be adjusted to the effective date Conversion Price which would then be in the case of subdivision, combination effect if such dividend or reclassificationdistribution had not been declared.
(b) In case the 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 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. In each such case, the Conversion Price shall be adjusted by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination. 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.
(c) In case the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Common Stock, rights, warrants or options Stock (other than as contemplated by Section 10.14) entitling such holders them (for a period commencing no earlier than the record date described below and expiring of not more than 45 days after such record date60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at Current Market Price on the record date Record Date fixed for the determination of stockholders entitled to receive such rightsrights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (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 which would then be in effect had the adjustments made upon the issuance of such rights or optionswarrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be 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. In determining whether any rights or warrants entitle the holders to subscribe for or 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 for such rights or warrants, the value of such consideration if other than cash, to be determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 10.04(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in Section 10.04(c) or 10.14, (2) any dividends or distributions in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.11 hereof applies and (3) dividends and distributions paid exclusively in cash referred to in Section 10.04(e) (the securities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 10.04(d) called the "excluded securities"), then, in each such case, subject to the second succeeding paragraph of this Section 10.04(d), the Conversion Price shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior thereto to the close of business on the Record Date with respect to such distribution by a fraction:
(1) the numerator of which shall be the Current Market Price on such date, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) on such date of the portion of the securities or other assets so distributed (other than excluded securities) applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and
(2) the denominator of which shall be such Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the Record Date. However, in the event that the then fair market value (as so determined) of the portion of the securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Market Price 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 of a Note (or any portion thereof) the amount of securities so distributed (other than excluded securities) such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such 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 the Board of Directors determines the fair market value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution (other than excluded securities), it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 10.04(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interests of the Holder. For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and 10.04(c), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 10.04(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which Section 10.04(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply, respectively (and any Conversion Price reduction required by this Section 10.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution shall be substituted as (x) "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "Record Date fixed for such determinations" and "Record Date" within the meaning of Section 10.04(a), (y) "the day upon which such subdivision becomes effective" and "the day upon which such combination becomes effective" within the meaning of Section 10.04(b), and (z) as "the date fixed for the determination of stockholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and such "Record Date" within the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 10.04(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock, cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.11 hereof applies or as part of a distribution referred to in Section 10.04(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Price shall be reduced so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such record date Record Date by a fraction, :
(i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the aggregate amount of the cash distributed and (y) the number of shares of Common Stock outstanding on such record datethe Record Date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued and
(or the aggregate conversion price of the convertible securities offered by such rights, warrants or optionsii) would purchase at such current market price, and the denominator of which shall be equal to the number of shares of Common Stock outstanding Current Market Price on such record date plus Record Date. In the number of additional shares of Common Stock offered by event that such rights, warrants dividend or options (distribution is not so paid or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercisedmade, the adjusted Conversion Price shall again be immediately readjusted adjusted to what it be the Conversion Price which would have then be in effect if such dividend or distribution had not been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)declared.
(cf) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within Subsidiaries pays holders of the preceding 12 months Common Stock in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of a tender offers) offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries or Affiliates, for shares of Common Stock concluded within to the preceding 12 months, extent that the cash and fair market value of any other consideration included in each case in respect the payment per share of Common Stock exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date on which no adjustment has been tenders or exchanges may be made under this Section 4.6, does not exceed 10% of Market Capitalization as of pursuant to such tender offer or exchange offer (the record date for such distribution"Expiration Time"), then then, and in each such case 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 close of business on the date of such distribution or purchase the Expiration Time by a fraction, :
(1) the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be 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 offer 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 repurchase 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 subject of such repurchase, Expiration Time and the denominator of which shall be the current market price per share (as defined in subsection (e) below) Closing Price of the Common Stock on the date of such repurchaseTrading Day next succeeding the Expiration Time. Such adjustment reduction (if any) shall become effective immediately after prior to the date 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 repurchasetender offer 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 offer or exchange offer had not been made. If the application of this Section 10.04(f) to any tender offer or exchange offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer or exchange offer under this Section 10.04(f).
(g) For purposes of this subsection (d)Section 10.04, the "Aggregate Market Premium" is following terms shall have the excess, if any, of the aggregate repurchase price paid for allmeanings indicated:
Appears in 1 contract
Samples: Indenture (Openwave Systems Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share of Common Stock (as determined in accordance with subsection (e) belowof this Section 4.6) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at such the current market priceprice per share (as defined in subsection (e) of this Section 4.6) of Common Stock on such record date, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, indebtedness or other non-cash assets (including securities of any person other than the Company but excluding (1) dividends on distributions paid exclusively in cash, other securities (2) dividends or other assetsdistributions referred to in subsection (a) of this Section 4.6 or (3) distributions in connection with a reclassification, consolidation or sale referred to in Section 4.11), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d1) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase Common Stock cash in an aggregate amount that, together with the aggregate amount of (including by way of tender offerA) shares of Common Stock, any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allmade and
Appears in 1 contract
Samples: Indenture (Usinternetworking Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(ai) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Company Common Stock, (ii2) subdivide its outstanding shares of Company Common Stock into a greater number of shares, shares or (iii3) combine its outstanding shares of Company Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder Holder, as holder of any Security the Note thereafter surrendered for conversion conversion, shall be entitled to receive the number of shares of Company Common Stock which it would have owned or have been entitled to receive immediately following such action had such Security the Note been converted immediately prior to the happening of such eventthereto. An adjustment made pursuant to this 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 subdivision, combination a subdivision or reclassificationcombination.
(bii) In case the Company shall issue rights or warrants to all or substantially all holders of its Company Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Company Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (eiv) below) at of the Company Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price 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, fraction of which the numerator of which shall be the number of shares of Company Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price, and of which the denominator of which shall be the number of shares of Company Common Stock outstanding on the date of issuance of such record date rights or warrants, immediately prior to such issuance, plus the number of additional shares of Company Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such the record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) date for the total number determination of shares of Common Stock offered (stockholders entitled to receive such rights or the convertible securities offered)warrants.
(ciii) In case the Company shall distribute to all or substantially all holders of its Company Common Stock any shares evidences of capital stock of the Company indebtedness or other assets (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assetscash dividends), or shall distribute to all or substantially all holders of its Company Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (eiv) below) of the Company 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 of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share of Company Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Company Common Stock on such record dateStock. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(div) In case For the Company or purpose of any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for such Common Stock, computation under subsections (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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been madeabove, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Company Common Stock on any date shall be deemed to be the average of the current market prices on the NASDAQ [National Association of Securities Dealers Automated Quotation System] for the 30 consecutive trading days commencing 45 trading days before the date in question.
(v) In any case in which this Section 4(e) shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such repurchaseadjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), less in which case the quotient obtained by dividing Company shall, with respect to any conversion of this Note or any portion thereof after such record date and before such adjustment shall have become effective (A) defer paying any cash payment pursuant to Section 4(c) or issuing to the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Holder the number of shares of Company Common Stock outstanding before issuable upon such repurchase and conversion in excess of the number of shares of Company Common Stock issuable thereupon only on the subject basis of such repurchasethe Conversion Price prior to adjustment, and (B) not later than five business days after such adjustment shall have become effective, pay to the denominator Holder the appropriate cash payment pursuant to Section 4(c) and issue to the Holder the additional shares of which Company Common Stock issuable on such conversion.
(vi) No adjustment in the Conversion Price shall be the current market price required unless such adjustment would require an increase or decrease of at least $.10 per share (as defined in subsection (e) below) of the Company Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Stock; provided, that any adjustments which by reason of this subsection (dvi) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 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 4(e) 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 4(e), 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 the "Aggregate Market Premium" Company to its stockholders shall not be taxable.
(vii) Whenever the Conversion Price is adjusted as herein provided, the excessCompany shall promptly mail to the Holder an Officers' Certificate setting forth (A) the Conversion Price after such adjustment, if any, (B) a calculation of the aggregate repurchase price paid for alladjustment and (C) a brief statement of the facts requiring such adjustment.
Appears in 1 contract
Samples: Convertible Subordinated Note (Dynamic Materials Corp)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price") for a series of Securities shall be that price as set forth in paragraph 8 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 form Securities of Security attached hereto such series were established, and, except as Exhibit A and otherwise provided therein, shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution distribution) in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii3) combine its outstanding shares of Common Stock into a smaller number of shares or (iv4) reclassify issue by reclassification of its outstanding Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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, combination or 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) of the Company, the Board of Directors (whose determination shall, if made in good faith, 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.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ef) below) at of the Common Stock on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price, computed to the nearest cent, so that the Conversion Price 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, of which
(2) the numerator of which shall be (A) the aggregate number of shares of Common Stock, Limited Vote Common Stock and As-Converted Series A Preferred Shares outstanding on the date of issuance of such record daterights, options or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(3) the denominator of which shall be (A) the aggregate number of shares of Common Stock, Limited Vote Common Stock and As-Converted Series A Preferred Shares 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 Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (b) are issuedonly exercisable upon the occurrence of certain triggering events relating to control and provided for in shareholders' rights plans, then the Conversion Price shall not be adjusted as provided in this subsection (b) until such triggering events shall occur; and shall become effective immediately after such record date. If at the end of the period during which provided further that if any such rights, options or warrants or options are exercisable not all rights, warrants or options shall have been exercisedexpire unexercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting take into account only the number of additional shares of Common Stock such rights, options or warrants actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)exercised.
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, shall distribute to all holders of Common Stock concluded within the preceding 12 monthsevidences of indebtedness, shares of Capital Stock other than Common Stock, cash or other assets (including securities, but other than (x) regular dividends or distributions paid exclusively in each case cash or (y) any dividend or distribution for which an adjustment is required to be made in respect of which no adjustment has been made under this Section 4.6accordance with subsection (a) or (b) above), does not exceed 10% of Market Capitalization as of the record date for such distributionsubsection (a) or (b) 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ef) below) of the 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 of the CompanyDirectors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately 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 its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with (c) shares above, or cash distributed upon a merger or consolidation to which Section 1705 applies) to all holders of Common StockStock 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 the sum of (i) the aggregate other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of Stock concluded within the preceding paragraph (c) paid within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1015% of Market Capitalization 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 aggregate number of shares of Common Stock, Limited Vote Common Stock and As-Converted Series A Preferred Shares then outstanding) on the record date of, and after giving effect to, of such repurchasedistribution, 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 or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the such record date of such repurchase, less the quotient obtained by dividing amount of the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares cash so distributed applicable to one share of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchaseStock, and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allbe
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth as stated in paragraph 8 of the form of Security attached hereto as Exhibit A and Securities (the "CONVERSION PRICE") 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 Per Share of Common Stock (as determined in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Share of Common Stock on such current market pricerecord date, and of which (y) the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding 36 -30-
(1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options those rights and warrants referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) also excluding the fair market value distribution of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, rights to all holders of Common Stock concluded within pursuant to the preceding 12 months, in each case in respect adoption of which no adjustment has been made a stockholders rights plan or the detachment of such rights under this Section 4.6, does not exceed 10% the terms of Market Capitalization as of the record date for such distributionstockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(d1) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as reasonably determined in good faith by way the Board of tender offerDirectors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) shares of Common Stockany other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 10.0% of the product of the Current Market Capitalization Price Per Share of Common Stock as of the last date (the "EXPIRATION DATE") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "EXPIRATION TIME") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price Per Share of the Common Stock on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of such repurchase, the Company) at the Expiration Time and the denominator Current Market Price Per Share of Common Stock on the Trading Day next succeeding the Expiration Date, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(e).
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 4.6, the current market price per share of Common Stock (the "CURRENT MARKET PRICE PER SHARE") on any date shall be deemed to be the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as defined in the case may be, with respect to distributions or tender offers under subsection (e) belowof this Section 4.6 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of this Section 4.6. The Closing Price for each day (the "CLOSING PRICE") shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the New York Stock Exchange (the "NYSE") or the Nasdaq National Market (the "NNM"), as applicable, or, if the Common Stock is not listed or admitted to trading on the NYSE or the NNM, the principal national securities exchange or quotation system on which the Common Stock is quoted or listed or admitted to trading or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. If no such prices are available, the Current Market Price Per Share shall be the fair value of a share of Common Stock as reasonably determined in good faith by the Board of Directors (which shall be evidenced by an Officers' Certificate delivered to the Trustee).
(g) In any case in which this Section 4.6 shall require that an adjustment be made following a record date of such repurchase. Such adjustment shall become effective immediately after or a Determination Date or Expiration Date, as the date of such repurchase. For case may be, established for purposes of this subsection (d)Section 4.6, the "Aggregate Market Premium" is Company may elect to defer (but only until five Business Days following the excess, if any, filing by the Company with the Trustee of the aggregate repurchase price certificate described in Section 4.9) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration 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 agent to issue due bills or other appropriate evidence prepared by the Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by the Company for allany reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Samples: Indenture (Brooks Automation Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other in shares of Common Stock to all holders of Common Stock, (ii) make a distribution in shares of Common Stock to all holders of Common Stock, (iiiii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) belowof this Section 4.6) at the record date for the determination of stockholders shareholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price Conversion Price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any company other than the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) belowof this Section 4.6) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in subsection (b) of this Section 4.6) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.6, make proper provision so that each holder of a Security who converts 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 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 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 Common Stock into which the principal amount of the 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 distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common StockStock cash in an aggregate amount that, and the fair market value of the sum of (i) together with the aggregate consideration paid for such amount of all cash distributions to all or substantially all holders of its 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 stock made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1012.5% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on such date of(excluding shares held in the Treasury of the Company), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase Determination Date by a fraction, fraction of which the numerator of which shall be the current market price per share of the Common Stock (as defined determined in accordance with subsection (e) belowof this Section 4.6) on the Determination Date less the amount of cash (plus the fair market value of such other consideration) so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the date basis of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and on the number of shares of Common Stock the subject of such repurchase, Determination Date) and the denominator of which shall be such current market price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution IS paid.
(e) For the purpose of any computation under subsections (b), (c) and (d) of this Section 4.6, the current market price per share (as defined in subsection (e) below) of the Common Stock on any date shall be deemed to be the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market Premium" is the excess, if any, average of the aggregate repurchase price paid daily closing prices for allthe 30 consecutive Trading Days commencing 45 Trading
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate.
(b) In case the Company shall issue to all or substantially all holders of (1) subdivide its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus subdivision or combination and the denominator shall be the number of shares which outstanding immediately after giving effect to such subdivision or combination. An adjustment made pursuant to this subsection (b) shall become effective immediately, except as provided in subsections (i) and (j) below, after the aggregate subscription effective date of a subdivision or combination.
(c) In case the Company shall issue rights, options or warrants to all or substantially all holders of Common Stock entitling them to subscribe for or purchase price for the total number of shares of Common Stock offered by at a price per share less than the rights, warrants or options so issued (or the aggregate conversion then current market price per share of the convertible securities offered by Common Stock (as determined pursuant to subsection (g) below) on the record date fixed for determination of the stockholders entitled to receive such rights, warrants option or options) would purchase at warrants, the Conversion Price in effect immediately following such current market record date shall be adjusted to a price, and computed to the denominator nearest cent, so that the same shall equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsection (i) and (j) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants issued by the Company as described in this subsection (c) are only exercisable upon the occurrence of certain triggering events, then the Conversion Price will not be adjusted as provided in this subsection (c) until such triggering events occur. Upon the expiration or termination of any rights, options are issued, and shall become effective immediately after such record date. If at or warrants without the end exercise of the period during which such rights, warrants options or options are exercisable not all rights, warrants or options shall have been exercisedwarrants, the adjusted Conversion Price then in effect shall be adjusted immediately readjusted to what it the Conversion Price which would have been upon application in effect at the time of such expiration or termination had such rights, options or warrants, to the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (extent outstanding immediately prior to such expiration or the number of shares of Common Stock issuable upon conversion of convertible securities actually termination, never been issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(cd) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its Common Stock any shares assets, evidences of capital stock of the Company indebtedness, cash or securities (other than Common Stock(x) dividends or evidences of its indebtedness, distributions exclusively in cash, other securities (y) any dividend or other assets, or shall distribute distribution for which an adjustment is required to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to be made in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in accordance with subsection (a) above; or (c) above and in mergers and consolidations to which Section 13.6 applies, or (iiiz) dividends and distributions paid in cash in an aggregate amount that, combined together with any distribution of rights or warrants subject to subsection (Al) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (Bbelow) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price in effect immediately following the record date fixed for the determination of the stockholders entitled to such distribution shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value (determined as provided in subsection (g) below) on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsection (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(de) In case the Company or any Subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with subsection (d) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all or substantially all holders of Common StockStock in an aggregate amount that, and the fair market value of the sum of combined together with (i) the aggregate consideration paid for all other such Common Stock, (ii) the aggregate fair market value of all-cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid made within the twelve (12) then preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously subsection (e) has been made, made and (iiiii) any cash and the aggregate fair market value of other consideration paid or payable in respect of any amounts previously paid tender or exchange offer by the Company or any of its Subsidiaries for the repurchase of Common Stock of a type described in this paragraph (d) concluded within the twelve (12) preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 10___% of Market Capitalization 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 (g) below) times the number of shares of Common Stock then outstanding) on the record date offixed for the determination of the stockholders entitled to such distribution, and after giving effect to, in each such repurchase, then case the Conversion Price immediately following such record date shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share of the Common Stock on such record date less the amount of the cash and/or fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of other consideration 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) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(f) In case the Company or any Subsidiary of the Company shall complete a tender or exchange offer 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 tender or exchange offer, as of the expiration of such other tender or exchange offer, expiring within the 12 months preceding the expiration of such Offer and in respect of which no Conversion Price adjustment pursuant to this subsection (f) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (e) 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 (e) has been made, exceeds ___% of the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Time times the number of shares of Common Stock outstanding before (including any tendered shares) on the Expiration Time, the Conversion Price in effect immediately following such repurchase and the number of shares of Common Stock the subject of Expiration Time shall be reduced by multiplying such repurchase, and the denominator Conversion Price by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date 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 repurchase. Such adjustment shall 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 after prior to the date opening of such repurchasebusiness on the day following the Expiration Time. For purposes of this subsection (f), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(g) For the purpose of any computation under subsections (c), (d), (e) and (f) 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 "Aggregate '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 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 Nasdaq National Market Premium" (or if not listed or admitted to trading thereon, then on the principal national securities exchange or on the principal automated quotation system on which the Common Stock is listed or admitted to trading) without the excessright to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b), (c), (d), (e) and (f) above, the Company, from time to time and to the extent permitted by law, may reduce the Conversion Price by any amount for at least 20 Business Days, if anythe Board of Directors has made a determination, which determination shall be conclusive, that such reduction would be in the best interests of the aggregate repurchase price paid Company. The Company shall cause notice of such reduction to be mailed to each Holder of Securities, in the manner specified in Section 13.7, at least 15 days prior to the date on which such reduction commences. The Company may, at its option, also make such reductions in the Conversion Price in addition to those set forth above, as the Board of Directors deems advisable to avoid or diminish any income tax to holders of shares of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for allUnited States federal income tax purposes.
(i) In any case in which this Section 13.5 shall require that an adjustment 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 of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the 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 appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company 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 (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.
(k) 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.
(l) In the event that the Company distributes rights or warrants (other than those referred to in subsection (c) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Note surrendered for conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of 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 or warrants of separate certificates evidencing such rights or warrants (the "Distribution Date"), the same number of rights or warrants to which a holder of a number of shares of 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 or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Note so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.
Appears in 1 contract
Samples: Indenture (May & Speh Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion PriceCONVERSION PRICE") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company (without duplication) as follows:
(a) In case the Company shall (i) pay a dividend or other distribution in shares of Common Stock or other Capital Stock to all holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more later than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (ef) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities (other than Common Stock or Capital Stock) or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bSection 10.06(b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (aSection 10.06(a) above; and (iii) dividends and distributions paid in cash referred to in an aggregate amount that, combined together with (ASection 10.06(e) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution)below, 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined determined in accordance with subsection (ef) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or optionsoptions issued, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined determined in accordance with subsection (ef) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value Subsidiary of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares Company makes a payment to holders of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, and (iii) the aggregate a tender or exchange offer of consideration per share of Common Stock having a fair market value (as determined by the Board of any amounts previously paid for the repurchase of Common Stock of a type Directors, whose determination shall be conclusive and described in this paragraph a resolution of the Board of Directors) that as of the last time (dthe "EXPIRATION TIME") within the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment tenders or exchanges may be made pursuant to this Section 4.6 previously has been made, such tender or exchange offer (as it may be amended) exceeds 10% of Market Capitalization the Closing Price on the date ofTrading Day next succeeding the Expiration Time, and after giving effect to, such repurchase, then 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 or purchase Expiration Time by a fraction, ,
(i) the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Price on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to holders of Common Stock based on the 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 Expiration Time (the shares deemed so accepted up to any such repurchase 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 subject Expiration Time and the Closing Price on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to the opening of business on the day following the 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.
(e) In case the Company shall declare a cash dividend or cash distribution to all or substantially all of the holders of Common Stock, the Conversion Price shall be decreased so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average of the Closing Price for the three consecutive Trading Days ending on the Trading Day immediately preceding the record date for such dividend or distribution (the "PRE-DIVIDEND SALE PRICE"), minus the full amount of such repurchasecash dividend or cash distribution applicable to one share of Common Stock (the "DIVIDEND ADJUSTMENT AMOUNT"), and and
(ii) the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of Pre-Dividend Sale Price, such repurchase. Such adjustment shall 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 $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 repurchaseconversion, the amount of cash such Holder would have received had such Holder converted its Security solely into Common Stock at the then applicable Conversion Price immediately prior to the 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.
(f) For purposes the purpose of this subsection any computation under Section 10.06(b) and (d)c) above, the "Aggregate 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 event requiring such computation. The "CLOSING PRICE" with respect to the Common Stock for any day shall mean the closing sale price, regular way, per share of Common Stock on such day or, in case no such sale of Common Stock takes place on such day, the average of the reported closing bid and asked prices, regular way, per share of Common Stock in each case on the American Stock Exchange, the New York Stock Exchange, the Nasdaq Stock Market Premium" or other principal national or regional security exchange or other quotation system on which the Common Stock is the excessquoted or listed or admitted to trading on such day, or, if anythe Common Stock is not so quoted or listed or admitted to trading on any national or regional securities exchange or quotation system, the average of the aggregate repurchase closing bid and asked prices per share of Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or, if such average is not so available, determined in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or if not so determinable as provided under any applicable alternative above, a price paid for allper share of Common Stock determined in good faith by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive.
Appears in 1 contract
Samples: Indenture (Grey Wolf Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) make a distribution in shares of Common Stock to holders of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, warrants or options rights shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any company other than the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as -23- defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or assets or evidences of indebtedness, securities or assets indebtedness so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in subsection (b) above) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 4.6, make proper provision so that each holder of a Security who converts 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 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 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 Common Stock into which the principal amount of the 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 distribute (a "Triggering Distribution") to all or substantially all holders of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common StockStock cash in an aggregate amount that, and the fair market value of the sum of (i) together with the aggregate consideration paid for such amount of any other cash distributions to all or substantially all holders of its 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 Stock made within the twelve (12) 12 months preceding the date of purchase payment of such shares of Common Stock the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1020% of Market Capitalization the product of the current market price per share of Common Stock (as determined in accordance with subsection (e) below) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on such date of(excluding shares held in the Treasury of the Company), and after giving effect to, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase Determination Date by a fraction, fraction of which the numerator of which shall be the current market price per share of the Common Stock (as defined determined in accordance with subsection (e) below) on the Determination Day less the amount of cash so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the date basis of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and on the number of shares of Common Stock the subject of such repurchase, Determination Date) and the denominator of which shall be such current market price per share of the Common Stock (as determined in accordance with subsection (e) below) on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(e) For the purpose of any computation under subsections (b), (c) and (d) above, the current market price per share (as defined in of Common Stock on any date shall be deemed to be the average of the daily closing prices for the 30 consecutive trading days commencing 45 trading days before the Determination Date with respect to distributions under subsection (ed) belowabove or the record date with respect to distributions, issuances or other events requiring such computation under subsections (b) or (c) above. The closing price for each day shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the New York Stock Exchange Composite Tape, or if the 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 sales price of the Common Stock as quoted by NASDAQ, or in case no reported sales takes place, the average of the closing bid and asked prices as quoted by NASDAQ or any comparable system, or if the Common Stock is not quoted on NASDAQ or any comparable system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members 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 4.6 shall require that an adjustment be made following a record date or a Determination Date, as the case may be, established for purposes of Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.10 below) issuing to the holder of any Security converted after such record date or Determination 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 date basis of such repurchase. Such adjustment shall become effective immediately after the date Conversion Price prior to adjustment; and, in lieu of such repurchase. For purposes the shares the issuance of this subsection (d)which is so deferred, the "Aggregate Market Premium" is Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the excess, if any, of Company or the aggregate repurchase price paid for allright to receive such shares.
Appears in 1 contract
Samples: Indenture (Sterling Software Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 on its Common Stock in shares of Common Stock to holders of Common Stock, (ii) make a distribution on its Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock into a greater number of shares, or (iiiiv) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into 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 Per Share of Common Stock (as determined in accordance with subsection (e) below) at on the record date for the determination of stockholders entitled to receive such rightsrights or warrants (provided, however, if such rights or warrants or optionsare only exercisable upon the occurrence of certain events, then the Conversion Price shall not be adjusted unless and until such triggering events occur), the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which (x) the numerator of which shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such rights, warrants or optionsconvertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price Per Share of Common Stock on such current market pricerecord date, and of which (y) the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, rights or warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, rights or warrants or options are exercisable not all rights, rights or warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants referred to in subsection (b) of this Section 4.6), then in each such case, for so long as such rights or warrants shall not have expired or been redeemed by the total Company, the Holder of any Security surrendered for conversion shall be entitled to receive, in addition to the shares of Common Stock issuable upon conversion, the following:
(i) If conversion occurs on or prior to the date for distribution of certificates evidencing such rights or warrants (the "Distribution Date"), the Holder shall be entitled to the same number of rights or warrants that a holder of a number of shares of Common Stock offered equal to the number of shares of Common Stock issuable upon conversion is entitled; and
(ii) if conversion occurs after the Distribution Date, the Holder shall be entitled to the same number of rights or warrants that a holder of a number of shares of Common Stock equal to the convertible securities offered)number of shares of Common Stock which the Holder would have owned had such Security been converted immediately prior to the Distribution Date, in accordance with the terms and provisions applicable to such rights or warrants.
(cd) 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) or ), evidences of its indebtedness, cash, other securities indebtedness or other assetsnon-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its securities which rights or warrants have expired or have been redeemed prior to conversion of any Securities (excluding (i) rights, options those rights and warrants referred to in subsection subsections (b) above or (fc) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be conclusive evidence of such fair market valuevalue and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock or stock, evidences of indebtedness, securities indebtedness or other non-cash assets so distributed or of such rights, rights or warrants or options, in each case as applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator of which shall be the current market price per share (as defined in subsection (e) below) Current Market Price Per Share of the Common Stock on such record date; provided, however, that in the case of rights or warrants which have expired or have been redeemed, such determination shall be made as of the time of expiration or redemption, rather than the record date, and shall be based upon the value immediately prior to such expiration or upon the redemption price, as the case may be. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders shareholders entitled to receive such distribution.
(de) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash in an aggregate amount that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (B) all other all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 12.5% of the product of the Current Market Price Per Share of Common Stock on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination 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 Determination Date by a fraction of which the numerator shall be the Current Market Price Per Share of the Common Stock on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such Current Market Price Per Share of the Common Stock on the Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.
(1) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall repurchase expire and such tender offer (including as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as reasonably determined in good faith by way the Board of tender offerDirectors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) shares of Common Stockany other consideration) that, together with the aggregate amount of (A) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the sum of (i) the aggregate consideration paid Company for 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 Stock consummated within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, made and (iiiB) the aggregate fair market value all cash distributions to all or substantially all holders of any amounts previously paid for the repurchase of its Common Stock of a type described in this paragraph (d) made within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 previously has been made, exceeds 10an amount equal to 12.5% of the product of the Current Market Capitalization Price Per Share of Common Stock as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the date ofExpiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, and then, immediately prior to the opening of business on the day after giving effect tothe Expiration Date, such repurchase, then the Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of such distribution or purchase Expiration Date by a fraction, fraction of which the numerator of which shall be the current market price per share (as defined in subsection (e) below) product of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price Per Share of the Common Stock on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such repurchase 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 and excluding any shares held in the subject treasury of such repurchase, the Company) at the Expiration Time and the denominator Current Market Price Per Share of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of Trading Day next succeeding the Expiration Date, such repurchase. Such adjustment shall reduction to become effective immediately after prior to the date opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such repurchasetender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(f) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(f).
(2) For purposes of this subsection (dSection 4.6(e) and 4.6(f), the term "Aggregate Market Premiumtender offer" is shall mean and include both tender offers and exchange offers (within the excessmeaning of U.S. Federal securities laws), if anyall references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, of the aggregate repurchase price paid for alland all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
Appears in 1 contract
Samples: Indenture (Chippac Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock or other Capital Stock to all holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately (whether or not it was then convertible) prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bSection 10.06(b) above or (f) belowabove; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (aSection 10.06(a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distributioncash), 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock Capital Stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable applicable, to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on such record date; 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 Common Stock issuable upon such conversion, the distribution such Holder would have received had such Holder converted its Security immediately prior to the record date for such distribution. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for such Common Stock, Stock and (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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 paragraph (d) within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 10.06 previously has been made, exceeds 105% of Common Stock Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the -55- Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (eSection 10.06(e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allall such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(e) In case someone other than the Company or one of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock in which, as of the closing date of the offer, the Company's Board of Directors is not recommending rejection of the offer, the Conversion Price will be adjusted as provided in subsection (d) above. The adjustment referred to in this clause will only be made if:
(i) the tender offer or exchange offer is for an amount that increases the offeror's ownership of common stock to more than 50% of the aggregate ordinary voting power represented by the Company's issued and outstanding Voting Stock; and
(ii) cash and the value of any other consideration included in the payment per share of Common Stock exceeds the current market price per share of Common Stock on the Business Day next succeeding the last date on which tenders or exchanges may be made pursuant to the tender or exchange offer. However, the adjustment referred to in this subsection (e) will not be made if as of the closing of the offer, the offering documents disclose a plan or an intention to cause the Company to engage in a consolidation or merger of the Company or a sale of all or substantially all of the Company's assets. For the purpose of any computation under Sections 10.06(b), (c) and (d) above and this Section 10.06(e), 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 event requiring such computation. The "Closing Price" with respect to the Common Stock for any day shall mean the closing sale price, regular way, per share of Common Stock on such day or, in case no such sale of Common Stock takes place on such day, the average of the reported closing bid and asked prices, regular way, per share of Common Stock in each case on the NASDAQ Stock Market or principal national securities exchange or other quotation system on which the Common Stock is quoted or listed or admitted to trading on such day, or, if the Common Stock is not so quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices per share of Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or, if such average is not so available, determined in such manner as furnished by any NASDAQ Stock Market member firm selected from time to time by the Board of Directors for that purpose, or if not so determinable as provided under any applicable alternative above, a price per share of Common Stock determined in good faith by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive. "Common Stock Market Capitalization" means, as of any date of calculation, the average Closing Price of the Common Stock on the 10 Trading Days immediately prior to such date of calculation multiplied by the average aggregate number of shares of Common Stock outstanding on the 10 Trading Days immediately prior to such date of calculation.
(f) 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 not the rights have separated from the Common Stock at the time of conversion and no adjustment to the Conversion Price will be made in accordance with paragraph (c).
(g) In case the Company shall declare a cash dividend or distribution to all of the holders of Common Stock, the Conversion Price shall be decreased so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average of the Closing Prices of the Common Stock price for the three consecutive trading days ending on the date immediately preceding the record date for such dividend or distribution (the "Pre-Dividend Sale Price"), minus the full amount of such cash dividend or distribution applicable to one share of Common Stock, and
(ii) the denominator of which shall be the Pre-Dividend Sale Price, such adjustment to become effective immediately after the record date for such dividend or distribution; provided that no adjustment to the Conversion Price or the ability of a Holder of a Security to convert will be made pursuant to this Section 10.06(g) if the Company provides that Holders of Securities will participate in such cash dividend or distribution on an as-converted basis without conversion and provided further, 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 Common Stock issuable upon such conversion, the amount of cash such Holder would have received had such Holder converted its Security immediately prior to the record date for such dividend or distribution. If such dividend or 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. In any case in which this Section 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 (but only until five Business Days following the filing by the Company with the Trustee of the 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 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. If after an adjustment a Holder of a Security upon conversion of such Security may receive shares of two or more classes of Capital Stock of the Company, the Conversion Price shall thereafter be subject to adjustment upon the occurrence of an action taken with respect to any such class of Capital Stock as is contemplated by this Article X with respect to the Common Stock, on terms comparable to those applicable to Common Stock in this Article X.
Appears in 1 contract
Samples: Indenture (Yellow Roadway Corp)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company there shall (i) pay be made or paid a dividend or other made a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (i) and (j) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate.
(b) In case the Company shall issue to all (1) subdivide or substantially all holders of reclassify its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus the number of shares which the aggregate subscription subdivision or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, combination and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after giving effect to such record datesubdivision, combination or reclassification. If at the end of 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 An adjustment made pursuant to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in this subsection (b) above or (f) below; (ii) those dividendsshall become effective immediately, distributions, subdivisions and combinations referred to except as provided in subsection (ai) above; and (iiij) dividends and distributions paid in cash in an aggregate amount thatbelow, combined together with (A) all other such cash distributions made within after the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 effective date of such distribution a subdivision, combination or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distributionreclassification.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and 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 Common Stock to holders of Common Stock, (ii) subdivide its outstanding Common Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it would have owned or have been entitled to receive had such Security been converted immediately prior to the happening of such event. 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 subdivision, combination or reclassification.
(b) In case the Company shall issue to all or substantially all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (eg) below) at the record date for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) 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) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding excluding: (i) rights, options options, warrants and warrants other securities referred to in subsection subsections (b) above or (fd), (e) or (h) below; and (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above); and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eg) below) of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (eg) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In the event the Company pays a dividend or makes a distribution to all holders of its Common Stock consisting of publicly-traded capital stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company, the Conversion Price shall be adjusted, if at all, in accordance with the formula: CP' = CP -------------
(1 + F ) ---------- M where: CP' = the adjusted Conversion Price CP = the current Conversion Price M = the average of the Closing Prices of the Common Stock for the 10 trading days commencing on and including the fifth trading day after the date on which "ex-dividend trading" commences for such dividend or distribution on The New York Stock Exchange or such other national or regional exchange or market which such securities are then listed or quoted. F = the average of the Closing Prices of the securities distributed in respect of each share of Common Stock for which this Section 4.6(e) applies for the 10 trading days commencing on and including the fifth trading day after the date on which "ex-dividend trading" commences for such dividend or distribution on The New York Stock Exchange or such other national or regional exchange or market which such securities are then listed or quoted.
(e) In case the Company shall declare a cash dividend or distribution greater than $0.03 per quarter to all the holders of Common Stock, the Conversion Price shall be decreased so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average Closing Price of the Company's Common Stock for the three consecutive Trading Days ending on the date immediately preceding the record date for such dividend or distribution (the "Pre-Dividend Sale Price"), minus the aggregate of the full amount of such cash dividend or distribution applicable to one share of Common Stock less $0.03 per fiscal quarter, and
(ii) the denominator of which shall be the Pre-Dividend Sale Price; such adjustment to become effective immediately after the record date for such dividend or distribution; provided that no adjustment to the Conversion Price or the ability of a Holder of a Security to convert will be made pursuant to this Section 4.6(e) if the Company provides that Holders of Securities will participate in such cash dividend or distribution on an as-converted basis without conversion.
(f) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender or exchange offer, other than an odd lot tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 paragraph (df) 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 4.6 previously has been made, exceeds 10% of aggregate Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (eg) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (eg) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (df), the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for allall such Common Stock over the aggregate current market value per share (as defined in subsection (g) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the date of repurchase with respect to such share.
(g) For the purpose of any computation under subsections (b), (c) and (f) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or other event requiring such computation. As used herein, the term "Trading Days" with respect to Common Stock means (i) if the Common Stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business or (ii) if the Common Stock is quoted on a system of automated dissemination of quotations of securities prices, days on which trades may be made on such system.
(h) If the Company has implemented or implements a Stockholder Rights Plan (as defined below), the Company agrees that such Stockholder Rights Plan will provide that upon any conversion of the Securities by any Holder prior to a Trigger Event (as defined below), the Holders shall receive the rights, warrants or options issued under such plan. Rights, warrants or options distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights, warrants or options, until the occurrence of a specified event or events (a "Trigger Event"):
(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 issuances of Common Stock,
(a " Stockholder Rights Plan") shall not be deemed distributed for purposes of this Section 4.6 and no adjustment to the Conversion Price shall be required to be made until the occurrence of the earliest Trigger Event. In addition, in the event of any Trigger Event with respect thereto, that shall have resulted in an adjustment to the Conversion Price under this Section 4.6, (1) in the case of any such rights, warrants or options which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights, warrants or options (assuming such holder had retained such rights, warrants or options), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of any such rights, warrants or options all of which shall have expired without exercise by any holder thereof, the Conversion Price shall be readjusted as if such issuance had not occurred. In any case in which this Section 4.6 shall require that an adjustment be made immediately following a record date established for purposes of this Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.10) 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 (Gencorp Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate.
(b) In case the Company shall issue to all or substantially all holders of (1) subdivide its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus subdivision or combination and the denominator shall be the number of shares which outstanding immediately after giving effect to such subdivision or combination. An adjustment made pursuant to this subsection (b) shall become effective immediately, except as provided in subsections (i) and (j) below, after the aggregate subscription effective date of a subdivision or combination.
(c) In case the Company shall issue rights, options or warrants to all or substantially all holders of Common Stock entitling them to subscribe for or purchase price for the total number of shares of Common Stock offered by at a price per share less than the rights, warrants or options so issued (or the aggregate conversion then current market price per share of the convertible securities offered by Common Stock (as determined pursuant to subsection (g) below) on the record date fixed for determination of the stockholders entitled to receive such rights, warrants option or options) would purchase at warrants, the Conversion Price in effect immediately following such current market record date shall be adjusted to a price, and computed to the denominator nearest cent, so that the same shall equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (c) are issuedonly exercisable upon the occurrence of certain triggering events, and shall become effective immediately after such record date. If at then the end of 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 will not 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 adjusted as provided in this subsection (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issuedc) for the total number of shares of Common Stock offered (or the convertible securities offered)until such triggering events occur.
(cd) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its Common Stock any shares assets, evidences of capital stock of the Company indebtedness, cash or securities (other than Common Stock(x) dividends or evidences of its indebtedness, distributions exclusively in cash, other securities (y) any dividend or other assets, or shall distribute distribution for which an adjustment is required to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to be made in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in accordance with subsection (a) or (c) above; and , or (iiiz) dividends and distributions paid in cash in an aggregate amount that, combined together with any distribution of rights or warrants subject to subsection (Al) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (Bbelow) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price in effect immediately following the record date fixed for the determination of the stockholders entitled to such distribution shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value (determined as provided in subsection (g) below) on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(de) In case the Company or any Subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclusively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with subsection (d) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all or substantially all holders of Common StockStock in an aggregate amount that, and the fair market value of the sum of combined together with (i) the aggregate consideration paid for all other such Common Stock, (ii) the aggregate fair market value of all-cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid made within the twelve (12) then preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously subsection (e) has been made, made and (iiiii) any cash and the aggregate fair market value of other consideration paid or payable in respect of any amounts previously paid tender or exchange offer by the Company or any of its Subsidiaries for the repurchase of Common Stock of a type described in this paragraph (d) concluded within the twelve (12) preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 1015% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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 allCompany's
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution distribution) in shares of Common Stock to holders on Common Stock of Common Stockthe Company, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, shares or (iii3) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it that he would have owned or have been entitled to receive immediately following such action had such Security Note been converted immediately prior to the happening of such eventthereto. 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 subdivisiona subdivision or combination. If any dividend or distribution of the type described in clause (1) above is not so paid or made, combination the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or reclassificationdistribution had not been declared.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into shares of Common Stock) at a price per share less than the then current market price per share of the Common Stock (as determined pursuant to subsection (d) below) on the record date 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:
(i) the Conversion Price in effect immediately prior to the date of issuance of such rights, options or warrants by a fraction, of which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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 (iii) the denominator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock which are so offered for subscription or purchase. Such adjustment shall become effective immediately, except as provided in subsection (f) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants issued by the Company as described in this subsection (b), whether issued before or after the date of this Indenture, are only exercisable upon the occurrence of certain triggering events, including those relating to control and provided for in a shareholder rights plan, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur. Upon the expiration or termination of any rights, options or warrants without the exercise of such rights, options or warrants, the Conversion Price then in effect shall be adjusted immediately to the Conversion Price which would have been in effect at the time of such expiration or termination had such rights, options or warrants, to the extent outstanding immediately prior to such expiration or termination, never been issued.
(c) In case the Company, after the date of this Indenture shall issue shares of its Common Stock, at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ed) below) at on the record date for the determination Company fixes the offering price of stockholders entitled to receive such rights, warrants or options, additional shares then the Conversion Price shall be reduced immediately thereafter so that it shall equal the price determined by multiplying such Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to the issuance of such record date, additional shares plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock offered by the rightsso offered, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such the current market price, price and the denominator of which shall be the number of shares of Common Stock that would be outstanding on immediately after the issuance of such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible)shares. Such adjustment shall be made successively whenever such an issuance is made. This subsection (c) does not apply to (i) any transaction described in subsections (a) or (b); (ii) the issuance of the Notes or the issuance of Common Stock upon conversion of the Notes; (iii) the issuance of Common Stock upon (x) the exercise of any option, warrant or other security convertible or exchangeable into Common Stock ("Equity Interests") issued after the date of this Indenture, to the extent that any required adjustment to the Conversion Price has been made pursuant to this subsection (c) or (y) the issuance of Common Stock pursuant to the exercise of any Equity Interest outstanding on the date of this Indenture; (iv) any Common Stock or Equity Interests issued to the Company's or any subsidiary's employees, consultants or directors pursuant to any plan or agreement approved by either the stockholders of the Company or a majority of the Company's independent directors; (v) the issuance of any Common Stock or Equity Interests in any bona fide underwritten public offering; or (vi) any Common Stock or Equity Interests issued in connection with any acquisition by the Company.
(d) For the purpose of any computation under subsections (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 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 of the date in question If on any such rightstrading day the Common Stock is not quoted by any organization referred to in the definition of Last Sale Price in Section 1203, warrants the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors, shall be used.
(e) The Company, from time to time and to the extent permitted by law, may reduce the Conversion Price by any amount for any period of at least 20 Business Days in which the Company shall give at least 15 days notice of such reduction, if the Board of Directors has made a determination that such reduction would be in the best interest of the Company, which determination shall be conclusive. In addition to the foregoing adjustments in subsections (a), (b) and (c) above and this subsection (e), the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable, including, without limitation, to avoid or options diminish any income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for United States federal income tax purposes. 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 Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are issuedapplicable 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.
(f) In any case in which this Section 1205 shall require that an adjustment be made immediately following a record date, and shall become the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective immediately time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Note converted after such record date. If at the end of the period during which date and on and before such rights, warrants or options are exercisable not all rights, warrants or options adjustment shall have been exercised, become effective (i) defer paying any cash payment pursuant to Section 1203 hereof or issuing to the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application Holder of the foregoing adjustment substituting such Note the number of additional shares of Common Stock actually issued (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock issuable upon conversion thereupon only on the basis of convertible securities actually issuedthe Conversion Price prior to adjustment, and (ii) for not later than five Business Days after such adjustment shall have become effective, pay to such Holder the total number of appropriate cash payment pursuant to Section 1203 hereof and issue to such Holder the additional shares of Common Stock offered (or the convertible securities offered)issuable on such conversion.
(cg) In 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 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(h) Whenever the Conversion Price is adjusted as herein provided, the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock 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 at his address as the same appears on the Note Register.
(i) In the event that the Company distributes rights or warrants (other than Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants those referred to in subsection (b) above above) pro rata to holders of Common Stock, so long as any such rights or (f) below; (ii) those dividendswarrants have not expired or been redeemed by the Company, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) Company shall make proper provision so that the fair market value of consideration payable in respect Holder of any repurchases (including by way of tender offers) by Note surrendered for conversion will be entitled to receive upon such conversion, in addition to the Company or any of its Subsidiaries or Affiliates, shares of Common Stock concluded within issuable upon such conversion (the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution"Conversion Shares"), then in each a number of rights or warrants to be determined as follows: (i) if 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 conversion occurs on or prior to the date for the distribution to the holders of rights or warrants of separate certificates evidencing such distribution rights or purchase by a fractionwarrants (the "Distribution Date"), the numerator same number of rights or warrants to which shall be the current market price per share (as defined in subsection (e) below) a holder of the Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board a number of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in respect accordance with the terms and provisions of which no adjustment pursuant and applicable to this Section 4.6 previously has been madethe rights or warrants, and (iiiii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this paragraph (d) within the twelve (12) months preceding the date of purchase of if such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been madeconversion occurs after such Distribution Date, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior number of rights or warrants to the date which a holder of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before into which the principal amount of such repurchase Note so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the number rights or warrants.
(j) For purposes of any computation respecting consideration received pursuant to subsection (c), the following shall apply:
(1) in the case of the issuance of shares of Common Stock for cash, the subject of such repurchase, and the denominator of which consideration shall be the current market price per share (as defined amount of such cash, provided that in subsection (e) below) no case shall any deduction be made for any commissions, discounts or other expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith; and
(2) in the case of the issuance of shares of Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes of this subsection (d)for a consideration in whole or in part other than cash, the "Aggregate Market Premium" is consideration other than cash shall be deemed to be the excess, if any, fair market value thereof (irrespective of the aggregate repurchase price paid for allaccounting treatment thereof) as determined in good faith by the Board of Directors.
Appears in 1 contract
Samples: Indenture (Surety Capital Corp /De/)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (il) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (ii2) subdivide its outstanding shares of Common Stock into a greater number of shares, shares or (iii3) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder holder of any Security Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive immediately following such action had such Security Debenture been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the then current market price per share of the Common Stock (as determined in accordance with pursuant to subsection (ef) below) at on the record date for the determination of stockholders entitled to receive such rights, warrants or optionsmentioned below, the Conversion Price in effect immediately prior thereto shall be adjusted to a price so that the Conversion Price same shall equal the price determined by multiplying multiplying:
(i) the Conversion Price in effect immediately prior to such the record date by a fraction, of which
(ii) the numerator of which shall be (A) the number of shares of Common Stock outstanding on such the record date, date plus (B) the number of shares which the aggregate subscription or purchase offering price for of the total number of shares of Common Stock so offered by the rights, warrants for subscription or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) purchase would purchase at such current market price (determined 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
(iii) the denominator of which shall be (A) the number of shares of Common Stock outstanding on such the record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever any become effective immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such rights, warrants options or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c) In case the Company or any Subsidiary of the Company shall distribute to all or substantially all holders of Common Stock, any of its assets, evidences of indebtedness, cash or securities other than Common Stock any shares of capital stock of the Company (other than Common Stock(x) dividends or evidences of its indebtedness, cash, other securities distributions exclusively in cash or other assets, (y) any dividend or shall distribute distribution for which an adjustment is required to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to be made in accordance with subsection (b) above or (fabove) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 record date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value on such record date (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or assets, evidences of indebtedness, cash or securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any Subsidiary of its Subsidiaries the Company shall repurchase make any distribution consisting exclu- sively of cash (including by way excluding any cash portion of tender offerdistributions for which an adjustment is required to be made in accordance with (c) shares above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common StockStock 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 the sum of (i) the aggregate other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock (any such Common Stock, (iitender offer being referred to as an "Offer") the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of concluded within the preceding paragraph (c) paid within the twelve (12) 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 1012.5% of Market Capitalization 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 ofof such distribution, and after giving effect to, in each such repurchase, then 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 or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share of the Common Stock on such record date less the amount of the cash and the fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the other consideration so distributed within such preceding 12 months 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.
(e) In case the Company or any Subsidiary of the Company shall complete 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 other consideration paid or payable in an Offer that expired within the 12 months preceding the expiration of such Offer in respect of which no adjustment has been made and (ii) the aggregate amount of all other all-cash distributions made within the 12 months preceding the expiration of such Offer in respect of which no adjustment has been made (other than all-cash distributions made upon a merger or consolidation to which Section 13.6 applies), exceeds 12.5% 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 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 defined provided in subsection (ef) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between 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 (as reasonably determined in good faith by the Board of Directors of the Company) 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.
(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. 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 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 NASDAQ National Market System (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 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 Debenture converted after such record date and on and before such repurchase and adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 13.3 hereof or issuing to the Holder of such Debenture the number of shares of Common Stock and other capital stock of the subject Company (or other assets or securities) issuable upon such conversion in excess of such repurchasethe number of shares of Common Stock and other Capital Stock of the 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 denominator appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of which Common Stock and other Capital Stock of the Company issuable on such conversion.
(i) No adjustment in the Conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least 1.0% of the Common Stock on Conversion Price; PROVIDED that the date of Company may make any such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes at its election and PROVIDED FURTHER that any adjustments which by reason of this subsection (d)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 adjust- ed as herein provided, the "Aggregate Market Premium" is Company shall promptly (i) file with the excess, if any, Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the aggregate repurchase price paid for allfacts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other make a distribution in shares of Common Stock to holders of Common Capital Stock, (ii2) subdivide its outstanding Common shares of Capital Stock into a greater number of shares, shares or (iii3) combine its outstanding Common shares of Capital Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockshares, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which it he would have owned or have been entitled to receive immediately following such action had such Security been converted immediately prior to the happening of such eventthereto. 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 subdivisiona subdivision or combination. If after an adjustment a holder upon conversion of the Capital Stock may receive shares of two or more classes of Capital Stock of the Company, combination or reclassificationthe Company shall determine the allocation of the adjusted Conversion Price between the classes of Capital Stock. After such allocation, the conversion privilege and Conversion Price of each class of Capital Stock shall thereafter be subject to adjustment on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Capital Stock entitling such holders them (for a period commencing no earlier than the record date described below and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Capital Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined pursuant to subsection (d) below) of the Capital Stock on the record date mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, in accordance with the following formula: N x P AP = -------------- CP x O + M where: AP = the adjusted Conversion Price. CP = the current Conversion Price. O = the number of shares of Capital Stock outstanding on the record date for the distribution. N = the number of additional shares of Capital Stock offered. P = the offering price per share of the additional shares. M = the current market price per share of Capital Stock on the record date. Such adjustment shall become effective immediately, except as provided in subsection (e) below) at , after the record date for the determination of stockholders holders entitled to receive such rights, warrants rights or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered)warrants.
(c) In case the Company shall distribute to all or substantially all holders of its Common Capital Stock, evidences of indebtedness, equity securities other than Capital Stock any shares of capital stock of the Company or other assets (other than Common Stock) or evidences of its indebtedness, cash, other securities cash dividends or other assetsdistributions to the extent paid from current or retained earnings of the Company), or shall distribute to all or substantially all holders of its Common Stock, rights, Capital Stock rights or warrants or options to subscribe for or purchase any of its to securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that in accordance with the same shall equal following formula: CP x M - F AP = ----------- M where: AP = the price determined by multiplying adjusted Conversion Price. CP = the current Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, the numerator of which shall be Price. M = the current market price per share (as defined in subsection (e) below) of the Common Capital Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 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 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 4.6 previously has been made, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then 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 or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding before such repurchase and the number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately 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
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price") shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In case the Company shall (i1) pay a dividend or other in shares of Common Stock to holders of any class of capital stock of the Company, (2) make a distribution in shares of Common Stock to holders of Common Stockany class of capital stock of the Company, (ii3) subdivide its outstanding shares of Common Stock into a greater number of shares, shares of Common Stock or (iii4) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) reclassify its outstanding of Common Stock, the Conversion Price in effect immediately prior thereto to such action shall be adjusted so that the Holder of any Security Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which it he would have owned or have been entitled to receive immediately following such action had such Security Debentures been converted immediately prior to the happening of such eventthereto. 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 subdivision, combination a subdivision or reclassificationcombination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock, rights, warrants or options Stock entitling such holders them (for a period commencing no earlier than the record date described below 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 Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with pursuant to subsection (ed) below) at of the Common Stock on such record date for the determination of stockholders entitled to receive such rights, warrants or optionsdate, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Conversion Price same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate subscription or purchase offering price for of the total number of offered shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or optionsso offered) would purchase at such current market price, and of which the denominator of which shall be the number of shares of Common Stock so outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of 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 (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital any class of stock of the Company (other than Common Stock) or , evidences of its indebtedness, cash, other securities indebtedness or other assetsassets (other than cash dividends out of retained earnings), or shall distribute to all or substantially all holders of its Common Stock, rights, Stock rights or warrants or options to subscribe for or purchase any of its to securities (excluding (i) rights, options and warrants other than those referred to in subsection (b) above or (f) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% 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 or purchase by a fraction, fraction of which the numerator of which shall be the current market price per share (determined as defined provided in subsection (ed) below) of the 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 of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, subscription rights or warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately after the record date for the determination of stockholders the holders of Common Stock entitled to receive such distribution.
(d) In case . Notwithstanding the foregoing, in the event that the Company shall distribute rights or any of its Subsidiaries shall repurchase warrants (including by way of tender offerother than those referred to in subsection (b) shares above) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this SECTION 14.05, make proper provision so that each holder of a Debenture who converts such Debenture (or any portion thereof) after the record date for such distribution and prior to the fair market value expiration or redemption of the sum of (i) Rights shall be entitled to receive upon such conversion, in addition to the aggregate consideration paid for 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 twelve (12) months preceding the date of purchase of such shares of Common Stock in respect issuable upon such conversion (the "Conversion Shares"), a number of which no adjustment pursuant Rights to this Section 4.6 previously has been made, and be determined as follows: (iiii) if such conversion occurs on or prior to the aggregate fair market value of any amounts previously paid date for the repurchase distribution to the holders of Common Stock Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a type described in this paragraph (d) within the twelve (12) months preceding the date number of purchase of such shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in respect accordance with the terms and provisions of which no adjustment pursuant and applicable to this Section 4.6 previously has been madethe Rights; and (ii) if such conversion occurs after the Distribution Date, exceeds 10% of Market Capitalization on the date of, and after giving effect to, such repurchase, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior number of Rights to the date which a holder of such distribution or purchase by a fraction, the numerator of which shall be the current market price per share (as defined in subsection (e) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between the number of shares of Common Stock outstanding into which the principal amount of the Debenture 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) For the purpose of any computation under subsections (b) and (c) above, the current market price of the Common Stock on any date shall be deemed to be the average of the Current Market Prices of the Common Stock for 30 consecutive trading days commencing 45 trading days before the date in question.
(e) In any case in which this SECTION 14.05 shall require that an adjustment 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 Debenture converted after such record date and before such repurchase and adjustment shall have become effective (i) defer paying any cash payment pursuant to SECTION 14.03 or delivering to the Holder of such Debenture the number of shares of Common Stock and other capital stock of the subject Company deliverable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Company deliverable 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 the Holder of such repurchase, Debenture the appropriate cash payment pursuant to SECTION 14.03 and issue to such Holder the denominator additional shares of which Common Stock and other capital stock of the Company deliverable on such conversion.
(f) No adjustment in the Conversion Price shall be the current market price per share (as defined required unless such adjustment would result in subsection (e) below) an increase or decrease of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes at least 1% thereof, provided, however, that any adjustments which by reason of this subsection (d)f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XIV shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Except as provided in subsections (a) and (b) above, the "Aggregate Conversion Price shall not be adjusted for the issuance of Common Stock at less than either the Current Market Premium" Price or the current Conversion Price, whether upon exercise of present or future options, the conversion of present or future convertible securities, or otherwise. Anything in this SECTION 14.05 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required under this SECTION 14.05, 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 the Company to the holders of Common Stock shall not be taxable.
(g) Whenever the Conversion Price is adjusted as herein provided, the excess, if any, Company shall promptly (i) file with the Trustee and each office or agency maintained for the purpose of conversion of Debentures as provided in SECTION 10.02 an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the aggregate repurchase price paid for allfacts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed to the Holders of the Debentures at their last addresses as they shall appear on the Debenture Register a notice of such adjustment.
Appears in 1 contract
Samples: Indenture (Banctec Inc)
Adjustment of Conversion Price. The conversion price (the "Conversion Price") Price shall be that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted subject to adjustment from time to time by the Company as follows:
(a) In each case the Company shall (i) make or pay a dividend or other make a distribution in shares of Common Stock to holders on any class of Common Stock, (ii) subdivide its outstanding Common Capital Stock into a greater number of shares, (iii) combine its outstanding Common Stock into a smaller number of shares or (iv) reclassify its outstanding Common Stockthe Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that following the Holder record date fixed for the determination of any Security thereafter surrendered for conversion shall be stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock which it would have owned or have been entitled to receive had outstanding at the close of business on such Security been converted immediately prior to date and the happening denominator shall be the sum of such eventnumber of shares and the total number of shares constituting such dividend or other distribution. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the such record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassificationdate."
(b) In the case the Company shall issue to all or substantially all holders of (1) subdivide its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase outstanding shares of Common Stock into a greater number of shares or (2) combine or securities convertible into Common Stock) at a price per share less than the current market price per share reclassify its outstanding shares of Common Stock (as determined in accordance with subsection (e) below) at the record date for the determination into a smaller number of stockholders entitled to receive such rights, warrants or optionsshares, the Conversion Price in effect immediately prior thereto following the effectiveness of such action shall be adjusted so that the by multiplying such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on immediately prior to such record date, plus subdivision or combination and the denominator shall be the number of shares which outstanding immediately after giving effect to such subdivision or combination. An adjustment made pursuant to this subsection (b) shall become effective immediately, except as provided in subsections (i) and (j) below, after the aggregate subscription effective date of a subdivision or combination.
(c) In case the Company shall issue rights, options or warrants to all holders of Common Stock entitling them to subscribe for or purchase price for the total number of shares of Common Stock offered by at a price per share less than the rights, warrants or options so issued (or the aggregate conversion then current market price per share of the convertible securities offered by Common Stock (as determined pursuant to subsection (g) below) on the record date fixed for determination of the stockholders entitled to receive such rights, warrants options or options) would purchase at warrants, the Conversion Price in effect immediately following such current market record date shall be adjusted to a price, and computed to the denominator nearest cent, so that the same shall equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price (determined 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
(iii) the denominator shall be (A) the number of shares of Common Stock outstanding on such record date plus (B) the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities are so offered by such rights, warrants for subscription or options are convertible)purchase. Such adjustment shall be made successively whenever become effective immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of holders entitled to receive such rights, options or warrants; provided, however, that if any such rights, options or warrants or options issued by the Company as described in this subsection (c) are issuedonly exercisable upon the occurrence of certain triggering events, and shall become effective immediately after such record date. If at then the end of 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 will not 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 adjusted as provided in this subsection (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issuedc) for the total number of shares of Common Stock offered (or the convertible securities offered)until such triggering events occur.
(cd) In case the Company shall distribute to all or substantially all holders of Common Stock, any of its Common Stock any shares assets, evidences of capital stock of the Company indebtedness, cash or securities (other than Common Stock(x) dividends or 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 evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in subsection (bc) above or (fz) any distribution of rights or warrants subject to subsection (l) below; (ii) those dividends, distributions, subdivisions and combinations referred to in subsection (a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 4.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price in effect immediately following the record date fixed for the determination of the stockholders entitled to such distribution) shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction, fraction of which the numerator of which shall be the then current market price per share (as defined in subsection (e) below) of the Common Stock on the record date mentioned below less the fair market value (determined as provided in subsection (g) below) on such record date less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable to one share of Common Stock, and of which the denominator of which shall be the such current market price per share (as defined in subsection (e) below) of the Common Stock on such record dateStock. Such adjustment shall become effective immediately immediately, except as provided in subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(de) In case 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 subsection (d) above, or any of its Subsidiaries shall repurchase (including by way of tender offercash distributed upon a merger or consolidation to which Section 12.6 applies) shares to all holders of Common StockStock in an aggregate amount that, and the fair market value of the sum of combined together with (i) the aggregate consideration paid for all other such Common Stock, (ii) the aggregate fair market value of all-cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid made within the twelve (12) then preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously subsection (e) has been made, made and (iiiii) any cash and the aggregate fair market value of other consideration paid or payable in respect of any amounts previously paid tender or exchange offer by the Company or any of its Subsidiaries for the repurchase of Common Stock of a type described in this paragraph (d) concluded within the twelve (12) preceding 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 10% of Market Capitalization the Company's market capitalization (defined as being the product of the then current market price per share of the Common Stock (determined as provided in subsection (g) below) times the number of shares of Common Stock then outstanding) on the record date offixed for the determination of the stockholders entitled to such distribution, and after giving effect to, in each such repurchase, then case the Conversion Price immediately following such record date shall be adjusted so that the same shall equal the price determined by multiplying such Conversion Price 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 and/or fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of other consideration 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 subsections (i) and (j) below, after the record date for the determination of stockholders entitled to receive such distribution.
(f) In case the Company or any Subsidiary of the Company shall complete a tender or exchange offer 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 Date") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other tender or exchange offer, as of the expiration of such other tender or exchange offer, expiring within the 12 months preceding the expiration of such Offer and in respect of which no Conversion Price adjustment pursuant to this subsection (f) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (e) 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 (e) has been made, exceeds 10% of the Company's market capitalization (defined as the product of the then current market price per share of the Common Stock on the Expiration Date (determined as provided in subsection (g) below) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Date), the Conversion Price in effect immediately prior to the date of following such distribution or purchase Expiration Date shall be reduced by multiplying such Conversion Price by a fraction, fraction of which the numerator of which shall be (i) the product of the then current market price per share (determined as defined provided in subsection (eg) below) of the Common Stock on the date of such repurchase, less the quotient obtained by dividing the Aggregate Market Premium involved in such repurchase (as defined hereinafter) by the difference between Expiration Date times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Date 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 Date (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 Date times (ii) such number of outstanding shares on the Expiration Date less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Date. For purposes of this subsection (f), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(g) For the purposes of any computation under subsections (c), (d), (e) and (f) 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 day 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 12.3, 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 Nasdaq National Market (or if not quoted thereon, then on the principal national securities exchange or automated quotation system if the Common Stock is listed or admitted to trading thereon) without the right to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b), (c), (d), (e) and (f) above, the Company from time to time and to the extent permitted by applicable law, shall be permitted to reduce the Conversion Price by any amount for any period of at least 20 Business Days, in which case the Company shall give at least 15 days' notice of such reduction, if the Board of Directors has made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive. The Company, at its option, shall be permitted to make such other reductions in the Conversion Price, in addition to those set forth above in subsections (a), (b), (c), (d), (e), (f) and the first sentence of this subsection (h), as the Board of Directors deems advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such a dividend or distribution for United States federal income tax purposes.
(i) In any case in which this Section 12.5 shall require that an adjustment 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 repurchase and 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 subject Company (or other assets or securities) issuable upon such conversion in excess of such repurchasethe number of shares of Common Stock and other Capital Stock of the 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 denominator appropriate Cash payment pursuant to Section 12.3 hereof and issue to such Holder the additional shares of which Common Stock and other Capital Stock of the Company issuable on such conversion.
(j) No adjustment in the Conversion Price shall be the current market price per share (as defined in subsection (e) below) required unless such adjustment would require an increase or decrease of at least 1.0% of the Common Stock on the date of such repurchase. Such adjustment shall become effective immediately after the date of such repurchase. For purposes Conversion Price; provided, that any adjustments which by reason of this subsection (dj) 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.
(k) 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.
(l) In the event that the Company distributes rights or warrants (other than those referred to in subsection (c) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Note surrendered for conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of 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 or warrants of separate certificates evidencing such rights or warrants (the "Distribution Date"), the "Aggregate Market Premium" same number of rights or warrants to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the excesstime of such conversion in accordance with the terms and provisions of and applicable to the rights or warrants, and (ii) if anysuch conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the aggregate repurchase price paid for allnumber of shares of Common Stock into which the principal amount of such Note so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants.
Appears in 1 contract
Samples: Indenture (Getty Images Inc)
