Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows: (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction: (1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and (2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and (2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction: (1) The numerator of which shall be such Current Market Price, and (2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction: (i) The numerator of which shall be equal to the Current Market Price on such Record Date, and (ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction: (1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and (2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f). (g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 6 contracts
Samples: Convertible Loan Note, Convertible Loan Note, Convertible Loan Note
Adjustment of Conversion Rate. 3.4.1 The Conversion Rate in effect at any date shall be subject to adjustments, calculated by the Company, adjustment from time to time as follows:provided in this Section 3.4, with the proviso that the events giving rise to an adjustment be only as permitted hereunder.
3.4.2 If and whenever the Corporation shall (ai) In case the Company shall hereafter pay a dividend subdivide or make a distribution to all holders of redivide the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be subdivided Shares into a greater number of shares of shares; (ii) reduce, combine or consolidate the outstanding Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined Shares into a smaller number of shares shares; or (iii) issue any Common Shares of the Corporation to the holders of all or substantially all of the outstanding Common Stock Shares by way of a stock dividend (commonly referred to as a “reverse split”other than any stock dividends constituting dividends paid in the ordinary course), the Conversion Rate number of Common Shares which may be acquired pursuant to Section 3.1 in effect at the opening of business on the day following effective date of such subdivision, redivision, reduction, combination or consolidation or on the day upon which record date for such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares issue of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator Shares by way of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasea stock dividend, as the case may be, shall be increased, in the case of the events referred to become effective immediately after in (i) and (iii) above, in the opening of business on proportion which 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 holders of its outstanding shares number of Common Stock entitling them (for a period of not more than 60 days) Shares outstanding before such subdivision, redivision or dividend bears to subscribe for or purchase shares the number of Common Stock Shares outstanding after such subdivision, redivision or dividend, or shall be decreased, in the case of the events referred to in (ii) above, in the proportion which the number of Common Shares outstanding before such reduction, combination, or securities convertible into consolidation bears to the number of Common Stock) at a price per share (Shares outstanding after such reduction, combination or having a Conversion Price per share) less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrantsconsolidation, and the Conversion Rate shall be adjusted so that the same shall equal the price determined accordingly. Any such issue of Common Shares by multiplying the Conversion Rate in effect at the opening way of business on the date after such Record Date by a fraction:
(1) the numerator of which stock dividend 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), and
(2) the denominator 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. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled deemed 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants have been made on the basis record date fixed for such stock dividend for the purpose of the delivery of only calculating the number of shares of outstanding Common Stock (Shares under this Subsection 3.4.2 or securities convertible into Common Stock) actually delivered. Subsection 3.4.4.
3.4.3 In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 reclassification (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants a reclassification referred to in paragraph 7(cSection 3.4.2) of, or other change in, the outstanding Common Shares into which this Promissory Note is convertible other than a subdivision, redivision, reduction, combination or consolidation, the number of Common Shares which may be acquired pursuant to Section 3.1 and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that in such manner as the board of directors of the Corporation, acting reasonably, determine to be appropriate on a basis consistent with this Section 3.4.
3.4.4 The Corporation shall from time to time immediately after the occurrence of any event which requires an adjustment or re-adjustment as provided in this Section 3.4, deliver a certificate of the Corporation to the Holder specifying the nature of the event requiring the same and the amount of the adjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based, which certificate and the amount of the adjustment specified therein shall be equal verified by the Corporation’s Chief Executive Officer.
3.4.5 If any question arises with respect to the price adjustments provided in this Section 3.4, such question shall be conclusively determined by multiplying a firm of chartered accountants (who may not be the Conversion Rate Corporation’s auditors) appointed by the Corporation. Such chartered accountants shall have for such purposes access to all necessary records of the Corporation and such determination shall be binding upon the Corporation and the Holder. All costs in effect this regard shall be borne by the Corporation in the event the certificate provided pursuant to Section 3.4.4 is determined in accordance with this Section to be materially incorrect but otherwise by the Holder.
3.4.6 In the event that one or more adjustments in the conversion feature of the Common Shares as contemplated in the share attributes of the Common Shares occurs prior to the date of conversion of this Promissory Note, the Holder shall be entitled to the full benefit of any such adjustments following the date hereof upon conversion of this Promissory Note as if the Holder were a holder of Common Shares received upon exercise immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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 time of the portion first to occur of the securities or other assets so distributed (other than excluded securities) applicable to one share of Common Stock (determined on the basis of such adjustments and thereafter, and the number and kind of shares of the Common Stock outstanding on the Record Date). Such increase 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 issuable upon conversion of a this Promissory 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)accordingly.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 5 contracts
Samples: Share Purchase Agreement (Aralez Pharmaceuticals Inc.), Share Purchase Agreement (Aralez Pharmaceuticals Inc.), Share Purchase Agreement (Aralez Pharmaceuticals Inc.)
Adjustment of Conversion Rate. The Conversion Rate Unless otherwise specified as contemplated by Section 2.2 for Debt Securities of such series, the conversion rate for Debt Securities in effect at any time shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter pay (i) declare a dividend or make a distribution to all holders on the class of the outstanding Common Capital Stock into which Debt Securities of such series are convertible in shares of Common its Capital Stock, (ii) subdivide the Conversion Rate outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a greater number of shares, (iii) combine the outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a smaller number of shares, or (iv) issue by reclassification of the shares of the class of Capital Stock into which Debt Securities of such series are convertible (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares, the conversion rate for the Debt Securities of such series in effect at the opening time of business on the record date following for such dividend or distribution, or the effective date fixed of such subdivision, combination or reclassification, shall be proportionately adjusted so that the holder of any series of Debt Securities of such series surrendered for the determination of stockholders conversion after such time shall be entitled to receive the number and kind of shares which he would have owned or have been entitled to receive had such dividend or other distribution Debt Security been converted immediately prior to such time. Similar adjustments shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which made whenever any event listed above shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredoccur.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 fix a record date for the issuance of rights or warrants to all holders of its outstanding shares the class of Common Capital Stock into which Debt Securities of such series are convertible entitling them (for a period of not more than 60 daysexpiring within 45 days after such record date) to subscribe for or purchase shares of Common such class of Capital Stock (or securities convertible into Common shares of such class of Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, having a Conversion Price conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class of Capital Stock, so issuable) less than the Current Market Price current market price per share of such class of Capital Stock (as defined in subsection (d) below) on the Record Date fixed for date on which such issuance was declared or otherwise announced by the determination of stockholders entitled to receive such rights or warrantsCompany (the "Determination Date"), the Conversion Rate number of shares of such class of Capital Stock into which each $1,000 principal amount of Debt Securities shall be adjusted so that the same convertible after such record date shall equal the price be determined by multiplying the Conversion Rate in effect at the opening number of business on the shares of such class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date after such Record Date by a fraction:
(1) , of which the numerator of which shall be the number of shares of Common such class of Capital Stock outstanding on the close of business on the Record Determination Date plus the total number of additional shares of Common such class of Capital Stock so offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible securities so offered are initially convertible), and
(2) and of which the denominator of which shall be the number of shares of Common such class of Capital Stock outstanding at the close of business on the Record Determination Date plus the number of shares which of such class of Capital Stock obtained by dividing the aggregate offering price of the total number of shares so offered for subscription (or, in the case of a right or warrant to purchase (or securities convertible into such class of Capital Stock, the aggregate Conversion Price initial conversion price of the convertible securities so offered, after adding thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities) would purchase at by such Current Market Pricecurrent market price. Shares of such class of Capital Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled be made successively whenever such a record date is fixed; and to receive such rights or warrants. To the extent that shares of Common such class of Capital Stock are not delivered (or securities convertible into Common Stock) shares of such class of Capital Stock are not delivered pursuant to such rights or warrants, upon delivered) after the expiration or termination of such rights or warrants (or, in the Conversion Rate case of rights or warrants to purchase securities convertible into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate shall be readjusted to the Conversion Rate conversion rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made on upon 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. .
(c) In determining whether case the Company shall fix a record date for the making of a distribution to all holders of the class of Capital Stock into which Debt Securities of such series are convertible (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above) or subscription rights or warrants entitle (excluding subscription rights or warrants to purchase the holders to subscribe for or purchase class of Capital Stock into which Debt Securities of such series are convertible), the number of shares of Common such class of Capital Stock at less than such Current Market Price, and in determining the aggregate offering price into which each $1,000 principal amount of Debt Securities of such series shall be convertible after such record date shall be determined by multiplying the number of shares of Common Stocksuch class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date by a fraction, there of which the numerator shall be taken into account any consideration received for such rights or warrants, the fair market value of the assets of the Company, after deducting therefrom all liabilities of the Company and all preferences (including accrued but unpaid dividends) in respect of classes of Capital Stock having a preference with respect to the assets of the Company over such consideration if other than cash, to be class of Capital Stock (all as determined by the Board of Directors.
(d) In case the Company shall, whose determination shall be conclusive, and described in a certificate signed by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Chairmen of the Company Board, President or any Vice President (other than any dividends or distributions to which paragraph 7(a) applies) or evidences regardless of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cVice Presidential designation) and (3the Chief Financial Officer or Treasurer of the Company, filed with the Trustee and each conversion agent) dividends on such record date, and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which the denominator shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on fair market value after deducting therefrom such dateliabilities and preferences, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutionstatement filed with the Trustee and each conversion agent) on Such date of the portion assets or evidences of the securities or other assets indebtedness, so distributed (other than excluded securities) applicable to one share or of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date)such subscription rights or warrants applicable, so distributed. Such increase adjustment shall become effective immediately prior to the opening of business on the day following the Record Date. However, be made successively whenever such a record date is fixed; and 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such dividend or distribution record date had not been declared. If fixed.
(d) For the Board of Directors determines the fair market value purpose of any distribution for purposes of this paragraph 7(dcomputation under subsection (b) by reference to above and Section 13.6, the actual or when issued trading current 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 paragraph 7(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 price per share of the Holder. For purposes Capital Stock on any date as of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution which such price is to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), be computed shall be deemed instead to be:
(1) a dividend or distribution mean the average 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 Closing Prices for the determination of stockholders entitled to receive 30 consecutive Business Days commencing 45 Business Days before such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributiondate.
(e) In case No adjustment in the Company shallconversion rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments which by dividend or otherwisereason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, distribute and provided, further, that adjustments shall be required and made in accordance with the provisions of this Article XIII (other than this subsection (e)) not later than such time as may be required in order to all holders of its Common Stock, cash (excluding any cash that is distributed as part preserve the tax-free nature of a distribution referred for United States income tax purposes to the holders of Debt Securities or the class of Capital Stock into which such Debt Securities are convertible. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in paragraph 7(d) hereof), then and in each such case, immediately after this Section 13.5 to the close of business on such datecontrary notwithstanding, the Conversion Rate Company shall be increased so entitled to make such adjustments in the conversion rate, in addition to those required by this Section 13.5, as it in its discretion shall determine to be advisable in order that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior any stock dividend, subdivision of shares, distribution of rights to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Datepurchase stock or securities, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredtaxable for United States income tax purposes.
(f) In case Whenever the conversion rate is adjusted, as herein provided, the Company shall promptly file with the Trustee and with the office or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, agency maintained by the Company for the conversion of Debt Securities of such series pursuant to Section 4.2, a certificate of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the regular accountants employed by the Company) setting forth the conversion rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness of such adjustment. 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 its Subsidiaries for shares Debt Securities of Common Stock such series desiring to inspect the same. The Company shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the extent holders of Debt Securities of such series, as their names and addresses appear upon the registration books of the Company.
(g) In the event that the cash and fair market value at any time, as a result of shares of any other consideration included class of Capital Stock becoming issuable in exchange or substitution for or in lieu of shares of the payment per share class of Common Capital Stock exceeds the Sale Price per share into which such Debt Securities are convertible or as a result of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be an adjustment made pursuant to subsection (a) above, the holder of any series of Debt Securities of such tender offer or exchange offer series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of the class of Capital Stock into which the Debt Securities of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any series of Debt Securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the class of Capital Stock into which the Debt Securities of such series are convertible contained in subsections (the “Expiration Time”a) to (f), theninclusive, above, and in each the provisions of this Article XIII with respect to the class of Capital Stock into which the Debt Securities of such case, the Conversion Rate series are convertible shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior apply on like terms to close of business on the date of the Expiration Time by a fraction:any such other shares.
(1h) the numerator 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 The conversion rate with respect to any maximum specified in Debt Securities with original issue discount, the terms of which provide for convertibility, shall not be adjusted during the tender offer or exchange offer) term of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, andOriginal Issue Discount Securities for accrued original issue discount.
(2i) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to Debt Securities of any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases series are rescindedconvertible into more than one class of Capital Stock, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application provisions of this paragraph 7(f) Section 13.5 shall apply separately to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for events affecting each such tender offer or exchange offer under this paragraph 7(f)class.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 3 contracts
Samples: Indenture Agreement (Constellation Australia Pty LTD), Indenture (Canandaigua LTD), Indenture (Constellation International Holdings LTD)
Adjustment of Conversion Rate. The Conversion Rate Unless otherwise specified as contemplated by Section 2.2 for Debt Securities of such series, the conversion rate for Debt Securities in effect at any time shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter pay (i) declare a dividend or make a distribution to all holders on the class of the outstanding Common Capital Stock into which Debt Securities of such series are convertible in shares of Common its Capital Stock, (ii) subdivide the Conversion Rate outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a greater number of shares, (iii) combine the outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a smaller number of shares, or (iv) issue by reclassification of the shares of the class of Capital Stock into which Debt Securities of such series are convertible (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares, the conversion rate for the Debt Securities of such series in effect at the opening time of business on the record date following for such dividend or distribution, or the effective date fixed of such subdivision, combination or reclassification, shall be proportionately adjusted so that the holder of any series of Debt Securities of such series surrendered for the determination of stockholders conversion after such time shall be entitled to receive the number and kind of shares which he would have owned or have been entitled to receive had such dividend or other distribution Debt Security been converted immediately prior to such time. Similar adjustments shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which made whenever any event listed above shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredoccur.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 fix a record date for the issuance of rights or warrants to all holders of its outstanding shares the class of Common Capital Stock into which Debt Securities of such series are convertible entitling them (for a period of not more than 60 daysexpiring within 45 days after such record date) to subscribe for or purchase shares of Common such class of Capital Stock (or securities convertible into Common shares of such class of Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, having a Conversion Price conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class of Capital Stock, so issuable) less than the Current Market Price current market price per share of such class of Capital Stock (as defined in subsection (d) below) on the Record Date fixed for date on which such issuance was declared or otherwise announced by the determination of stockholders entitled to receive such rights or warrantsCompany (the “Determination Date”), the Conversion Rate number of shares of such class of Capital Stock into which each $1,000 principal amount of Debt Securities shall be adjusted so that the same convertible after such record date shall equal the price be determined by multiplying the Conversion Rate in effect at the opening number of business on the shares of such class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date after such Record Date by a fraction:
(1) , of which the numerator of which shall be the number of shares of Common such class of Capital Stock outstanding on the close of business on the Record Determination Date plus the total number of additional shares of Common such class of Capital Stock so offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible securities so offered are initially convertible), and
(2) and of which the denominator of which shall be the number of shares of Common such class of Capital Stock outstanding at the close of business on the Record Determination Date plus the number of shares which of such class of Capital Stock obtained by dividing the aggregate offering price of the total number of shares so offered for subscription (or, in the case of a right or warrant to purchase (or securities convertible into such class of Capital Stock, the aggregate Conversion Price initial conversion price of the convertible securities so offered, after adding thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities) would purchase at by such Current Market Pricecurrent market price. Shares of such class of Capital Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled be made successively whenever such a record date is fixed; and to receive such rights or warrants. To the extent that shares of Common such class of Capital Stock are not delivered (or securities convertible into Common Stock) shares of such class of Capital Stock are not delivered pursuant to such rights or warrants, upon delivered) after the expiration or termination of such rights or warrants (or, in the Conversion Rate case of rights or warrants to purchase securities convertible into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate shall be readjusted to the Conversion Rate conversion rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made on upon 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. .
(c) In determining whether case the Company shall fix a record date for the making of a distribution to all holders of the class of Capital Stock into which Debt Securities of such series are convertible (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above) or subscription rights or warrants entitle (excluding subscription rights or warrants to purchase the holders to subscribe for or purchase class of Capital Stock into which Debt Securities of such series are convertible), the number of shares of Common such class of Capital Stock at less than such Current Market Price, and in determining the aggregate offering price into which each $1,000 principal amount of Debt Securities of such series shall be convertible after such record date shall be determined by multiplying the number of shares of Common Stocksuch class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date by a fraction, there of which the numerator shall be taken into account any consideration received for such rights or warrants, the fair market value of the assets of the Company, after deducting therefrom all liabilities of the Company and all preferences (including accrued but unpaid dividends) in respect of classes of Capital Stock having a preference with respect to the assets of the Company over such consideration if other than cash, to be class of Capital Stock (all as determined by the Board of Directors.
(d) In case the Company shall, whose determination shall be conclusive, and described in a certificate signed by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Chairmen of the Company Board, President or any Vice President (other than any dividends or distributions to which paragraph 7(a) applies) or evidences regardless of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cVice Presidential designation) and (3the Chief Financial Officer or Treasurer of the Company, filed with the Trustee and each conversion agent) dividends on such record date, and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which the denominator shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on fair market value after deducting therefrom such dateliabilities and preferences, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutionstatement filed with the Trustee and each conversion agent) on Such date of the portion assets or evidences of the securities or other assets indebtedness, so distributed (other than excluded securities) applicable to one share or of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date)such subscription rights or warrants applicable, so distributed. Such increase adjustment shall become effective immediately prior to the opening of business on the day following the Record Date. However, be made successively whenever such a record date is fixed; and 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such dividend or distribution record date had not been declared. If fixed.
(d) For the Board of Directors determines the fair market value purpose of any distribution for purposes of this paragraph 7(dcomputation under subsection (b) by reference to above and Section 13.6, the actual or when issued trading current 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 paragraph 7(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 price per share of the Holder. For purposes Capital Stock on any date as of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution which such price is to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), be computed shall be deemed instead to be:
(1) a dividend or distribution mean the average 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 Closing Prices for the determination of stockholders entitled to receive 30 consecutive Business Days commencing 45 Business Days before such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributiondate.
(e) In case No adjustment in the Company shallconversion rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments which by dividend or otherwisereason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, distribute and provided, further, that adjustments shall be required and made in accordance with the provisions of this Article XIII (other than this subsection (e)) not later than such time as may be required in order to all holders of its Common Stock, cash (excluding any cash that is distributed as part preserve the tax-free nature of a distribution referred for United States income tax purposes to the holders of Debt Securities or the class of Capital Stock into which such Debt Securities are convertible. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in paragraph 7(d) hereof), then and in each such case, immediately after this Section 13.5 to the close of business on such datecontrary notwithstanding, the Conversion Rate Company shall be increased so entitled to make such adjustments in the conversion rate, in addition to those required by this Section 13.5, as it in its discretion shall determine to be advisable in order that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior any stock dividend, subdivision of shares, distribution of rights to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Datepurchase stock or securities, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredtaxable for United States income tax purposes.
(f) In case Whenever the conversion rate is adjusted, as herein provided, the Company shall promptly file with the Trustee and with the office or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, agency maintained by the Company or any for the conversion of its Subsidiaries for shares Debt Securities of Common Stock such series pursuant to Section 4.2, a certificate of a firm of independent public accountants of recognized national standing selected by the extent that the cash and fair market value Board of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges Directors (who may be made pursuant to the regular accountants employed by the Company) setting forth the conversion rate after such tender offer or exchange offer (adjustment and setting forth a brief statement of the “Expiration Time”), then, facts requiring such adjustment and in each such case, the Conversion Rate a computation thereof. Such certificate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date conclusive evidence of the Expiration Time by a fraction:
(1) correctness of such adjustment. Neither the numerator of which Trustee nor any conversion agent 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 under any maximum specified in the terms of the tender offer duty or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up responsibility with respect to any such maximumcertificate or any facts or computations set forth therein, being referred except to exhibit said certificate from time to time to any holder of Debt Securities of such series desiring to inspect the same. The Company shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the holders of Debt Securities of such series, as their names and addresses appear upon the “Purchased Shares”) and (y) the product registration books of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)Company.
(g) For purposes In the event that at any time, as a result of this paragraph 7shares of any other class of Capital Stock becoming issuable in exchange or substitution for or in lieu of shares of the class of Capital Stock into which such Debt Securities are convertible or as a result of an adjustment made pursuant to subsection (a) above, the following holder of any series of Debt Securities of such series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of the class of Capital Stock into which the Debt Securities of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any series of Debt Securities shall be subject to adjustment from time to time in a manner and on terms shall have as nearly equivalent as practicable to the meanings indicated:provisions with respect to the class of Capital Stock into which the Debt Securities of such series are convertible contained in subsections (a) to
Appears in 3 contracts
Samples: Indenture (Roberts Trading Corp), Indenture (Constellation Brands, Inc.), Indenture (Constellation Brands, Inc.)
Adjustment of Conversion Rate. The Conversion Rate Unless otherwise specified as contemplated by Section 2.2 for Debt Securities of such series, the conversion rate for Debt Securities in effect at any time shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter pay (i) declare a dividend or make a distribution to all holders on the class of the outstanding Common Capital Stock into which Debt Securities of such series are convertible in shares of Common its Capital Stock, (ii) subdivide the Conversion Rate outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a greater number of shares, (iii) combine the outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a smaller number of shares, or (iv) issue by reclassification of the shares of the class of Capital Stock into which Debt Securities of such series are convertible (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares, the conversion rate for the Debt Securities of such series in effect at the opening time of business on the record date following for such dividend or distribution, or the effective date fixed of such subdivision, combination or reclassification, shall be proportionately adjusted so that the holder of any series of Debt Securities of such series surrendered for the determination of stockholders conversion after such time shall be entitled to receive the number and kind of shares which he would have owned or have been entitled to receive had such dividend or other distribution Debt Security been converted immediately prior to such time. Similar adjustments shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which made whenever any event listed above shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredoccur.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 fix a record date for the issuance of rights or warrants to all holders of its outstanding shares the class of Common Capital Stock into which Debt Securities of such series are convertible entitling them (for a period of not more than 60 daysexpiring within 45 days after such record date) to subscribe for or purchase shares of Common such class of Capital Stock (or securities convertible into Common shares of such class of Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, having a Conversion Price conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class of Capital Stock, so issuable) less than the Current Market Price current market price per share of such class of Capital Stock (as defined in subsection (d) below) on the Record Date fixed for date on which such issuance was declared or otherwise announced by the determination of stockholders entitled to receive such rights or warrantsCompany (the “Determination Date”), the Conversion Rate number of shares of such class of Capital Stock into which each $1,000 principal amount of Debt Securities shall be adjusted so that the same convertible after such record date shall equal the price be determined by multiplying the Conversion Rate in effect at the opening number of business on the shares of such class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date after such Record Date by a fraction:
(1) , of which the numerator of which shall be the number of shares of Common such class of Capital Stock outstanding on the close of business on the Record Determination Date plus the total number of additional shares of Common such class of Capital Stock so offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible securities so offered are initially convertible), and
(2) and of which the denominator of which shall be the number of shares of Common such class of Capital Stock outstanding at the close of business on the Record Determination Date plus the number of shares which of such class of Capital Stock obtained by dividing the aggregate offering price of the total number of shares so offered for subscription (or, in the case of a right or warrant to purchase (or securities convertible into such class of Capital Stock, the aggregate Conversion Price initial conversion price of the convertible securities so offered, after adding thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities) would purchase at by such Current Market Pricecurrent market price. Shares of such class of Capital Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled be made successively whenever such a record date is fixed; and to receive such rights or warrants. To the extent that shares of Common such class of Capital Stock are not delivered (or securities convertible into Common Stock) shares of such class of Capital Stock are not delivered pursuant to such rights or warrants, upon delivered) after the expiration or termination of such rights or warrants (or, in the Conversion Rate case of rights or warrants to purchase securities convertible into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate shall be readjusted to the Conversion Rate conversion rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made on upon 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. .
(c) In determining whether case the Company shall fix a record date for the making of a distribution to all holders of the class of Capital Stock into which Debt Securities of such series are convertible (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above) or subscription rights or warrants entitle (excluding subscription rights or warrants to purchase the holders to subscribe for or purchase class of Capital Stock into which Debt Securities of such series are convertible), the number of shares of Common such class of Capital Stock at less than such Current Market Price, and in determining the aggregate offering price into which each $1,000 principal amount of Debt Securities of such series shall be convertible after such record date shall be determined by multiplying the number of shares of Common Stocksuch class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date by a fraction, there of which the numerator shall be taken into account any consideration received for such rights or warrants, the fair market value of the assets of the Company, after deducting therefrom all liabilities of the Company and all preferences (including accrued but unpaid dividends) in respect of classes of Capital Stock having a preference with respect to the assets of the Company over such consideration if other than cash, to be class of Capital Stock (all as determined by the Board of Directors.
(d) In case the Company shall, whose determination shall be conclusive, and described in a certificate signed by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Chairmen of the Company Board, President or any Vice President (other than any dividends or distributions to which paragraph 7(a) applies) or evidences regardless of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cVice Presidential designation) and (3the Chief Financial Officer or Treasurer of the Company, filed with the Trustee and each conversion agent) dividends on such record date, and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which the denominator shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on fair market value after deducting therefrom such dateliabilities and preferences, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutionstatement filed with the Trustee and each conversion agent) on Such date of the portion assets or evidences of the securities or other assets indebtedness, so distributed (other than excluded securities) applicable to one share or of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date)such subscription rights or warrants applicable, so distributed. Such increase adjustment shall become effective immediately prior to the opening of business on the day following the Record Date. However, be made successively whenever such a record date is fixed; and 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such dividend or distribution record date had not been declared. If fixed.
(d) For the Board of Directors determines the fair market value purpose of any distribution for purposes of this paragraph 7(dcomputation under subsection (b) by reference to above and Section 13.6, the actual or when issued trading current 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 paragraph 7(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 price per share of the Holder. For purposes Capital Stock on any date as of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution which such price is to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), be computed shall be deemed instead to be:
(1) a dividend or distribution mean the average 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 Closing Prices for the determination of stockholders entitled to receive 30 consecutive Business Days commencing 45 Business Days before such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributiondate.
(e) In case No adjustment in the Company shallconversion rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments which by dividend or otherwisereason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, distribute and provided, further, that adjustments shall be required and made in accordance with the provisions of this Article XIII (other than this subsection (e)) not later than such time as may be required in order to all holders of its Common Stock, cash (excluding any cash that is distributed as part preserve the tax-free nature of a distribution referred for United States income tax purposes to the holders of Debt Securities or the class of Capital Stock into which such Debt Securities are convertible. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in paragraph 7(d) hereof), then and in each such case, immediately after this Section 13.5 to the close of business on such datecontrary notwithstanding, the Conversion Rate Company shall be increased so entitled to make such adjustments in the conversion rate, in addition to those required by this Section 13.5, as it in its discretion shall determine to be advisable in order that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior any stock dividend, subdivision of shares, distribution of rights to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Datepurchase stock or securities, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredtaxable for United States income tax purposes.
(f) In case Whenever the conversion rate is adjusted, as herein provided, the Company shall promptly file with the Trustee and with the office or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, agency maintained by the Company for the conversion of Debt Securities of such series pursuant to Section 4.2, a certificate of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the regular accountants employed by the Company) setting forth the conversion rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness of such adjustment. 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 its Subsidiaries for shares Debt Securities of Common Stock such series desiring to inspect the same. The Company shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the extent holders of Debt Securities of such series, as their names and addresses appear upon the registration books of the Company.
(g) In the event that the cash and fair market value at any time, as a result of shares of any other consideration included class of Capital Stock becoming issuable in exchange or substitution for or in lieu of shares of the payment per share class of Common Capital Stock exceeds the Sale Price per share into which such Debt Securities are convertible or as a result of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be an adjustment made pursuant to subsection (a) above, the holder of any series of Debt Securities of such tender offer or exchange offer series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of the class of Capital Stock into which the Debt Securities of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any series of Debt Securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the class of Capital Stock into which the Debt Securities of such series are convertible contained in subsections (the “Expiration Time”a) to (f), theninclusive, above, and in each the provisions of this Article XIII with respect to the class of Capital Stock into which the Debt Securities of such case, the Conversion Rate series are convertible shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior apply on like terms to close of business on the date of the Expiration Time by a fraction:any such other shares.
(1h) the numerator 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 The conversion rate with respect to any maximum specified in Debt Securities with original issue discount, the terms of which provide for convertibility, shall not be adjusted during the tender offer or exchange offer) term of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, andOriginal Issue Discount Securities for accrued original issue discount.
(2i) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to Debt Securities of any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases series are rescindedconvertible into more than one class of Capital Stock, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application provisions of this paragraph 7(f) Section 13.5 shall apply separately to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for events affecting each such tender offer or exchange offer under this paragraph 7(f)class.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 3 contracts
Samples: Indenture, Indenture (Constellation Brands, Inc.), Indenture (Constellation Brands, Inc.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, in each case, to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the opening Close of business Business on the date following Trading Day immediately preceding the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such distribution; CR1 = the Conversion Rate by a fraction:
(1) in effect on the numerator of which shall be the sum of Ex-Dividend Date for such dividend or distribution; OS0 = the number of shares of Common Stock outstanding at the close Close of business Business on the Record Trading Day immediately preceding the Ex-Dividend Date fixed for such determination dividend or distribution; and OS1 = the total number of shares constituting of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend or other distribution, and
(2. Any adjustment made pursuant to this Section 6.04(a) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after prior to the opening Open of business Business on the day following the Record DateEx-Dividend Date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this paragraph 7(aSection 6.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Company publicly announces its decision not to make such dividend or distribution, to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 6.04(a), the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution shall not include shares of Common Stock held in treasury, if any. The Company will not pay any dividend or make any distribution on Common Stock held in treasury, if any.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be or combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the opening Close of business Business on the day following Trading Day immediately preceding the day upon which effective date of such combination becomes effective shall be reduced, in each such case, by multiplying such subdivision or combination; CR1 = the Conversion Rate by a fraction, in effect on the numerator effective date of which shall be such subdivision or combination; OS0 = the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately after giving effect to preceding the effective date of such subdivision or combination combination; and the denominator of which shall be OS1 = the number of shares of Common Stock that would be outstanding immediately prior to after, and solely as a result of, such subdivision or combination. Such reduction or increase, as the case may be, Any adjustment made pursuant to this Section 6.04(b) shall become effective immediately after prior to the opening Open of business Business on the day following the day upon which effective date of such subdivision or combination becomes effectivecombination.
(c) In case the Company shall issue rights (other than rights issued pursuant to a stockholder rights plan) or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (to purchase, for a period expiring within 45 calendar days of not more the date of announcement, Common Stock at an aggregate price per share less than 60 days) to subscribe the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date that the issuance of the rights or warrants was first publicly announced, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for or purchase such issuance; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock (or securities convertible into Common Stock) outstanding at a price per share (or having a Conversion Price per share) less than the Current Market Price Close of Business on the Record Trading Day immediately preceding the Ex-Dividend Date fixed for such issuance; X = the determination total number of stockholders entitled shares of Common Stock issuable pursuant to receive such rights or warrants; and Y = the number of shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. Any adjustment made pursuant to this Section 6.04(c) shall become effective immediately prior to the Open of Business on the Ex-Dividend Date for such issuance. In the event that such rights or warrants described in this Section 6.04(c) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 determining the event that aggregate price payable to exercise such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 Stockwarrants, there shall be taken into account any consideration received by the Company for such rights or warrants, warrants and the value of such consideration (if other than cash, to be determined by the Company’s Board of Directors). For purposes of this Section 6.04(c), the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance shall not include shares of Common Stock held in treasury, if any. The Company will not issue any rights or warrants in respect of shares of Common Stock held in treasury, if any.
(d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Common Stock Stock, shares of any class of capital stock the Company’s Capital Stock, evidences of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its Company’s indebtedness or other assets, including securities, but excluding excluding:
(1i) any dividends or distributions referred to in Section 6.04(a) above;
(ii) shares delivered in connection with subdivisions of Common Stock referred to in Section 6.04(b) above;
(iii) any rights or warrants referred to in paragraph 7(cSection 6.04(c) and above;
(3iv) dividends and distributions paid exclusively in cash any rights or warrants referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding last paragraph of this paragraph 7(dSection 6.04(d) below (to the extent and as specified therein);
(v) any dividends or distributions referred to in Section 6.04(e) below; and
(vi) any Public Spin-Offs to which the provisions set forth below in this Section 6.04(d) applies, then for these non-excluded transactions and events, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors) on the Ex-Dividend Date for such distribution of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this Section 6.04(d) is, however, one pursuant to which the payment of a dividend or other distribution on Common Stock consists of shares of Capital Stock of any class or series of, or similar equity interests in, a Subsidiary or other business unit of the Company (i.e. a “spin-off”) that are, or when issued, will be, traded or listed on The Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), the Conversion Rate shall will be adjusted so that based on the same shall be equal to the price determined by multiplying following formula: where CR0 = the Conversion Rate in effect immediately prior to at the close Close of business Business on the Record Trading Day immediately preceding the Ex-Dividend Date with respect to for such distribution by a fraction:
(1) The numerator of which shall be distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such Current Market Price, and
(2) The denominator of which shall be distribution; FMV0 = 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 average of the portion Last Reported Sale Prices of the securities Capital Stock or other assets so similar equity interests distributed (other than excluded securities) in the Public Spin-Off to holders of Common Stock applicable to one share of Common Stock (determined during the 10 consecutive Trading Day period commencing on and including the basis effective date of the number Public Spin-Off (the “Public Spin-Off Valuation Period”); and MP0 = the average of shares the Last Reported Sale Prices of the Common Stock outstanding on during the Record Date)Public Spin-Off Valuation Period. Such increase Any adjustment made pursuant to this Section 6.04(d) shall become effective immediately prior to the opening Open of business Business on the day following the Record DateEx-Dividend Date for such distribution. 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 If 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 of the type described in this Section 6.04(d) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Company publicly announces its decision not to be pay such dividend or distribution, to the Conversion Rate which that 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 paragraph 7(d) by reference an adjustment 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 Conversion Rate is required pursuant to paragraph 7(gthis Section 6.04(d) during any settlement period in respect of Securities that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent possible, unless necessary in order to complete the Board of Directors calculations provided for 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 Holderthis Section 6.04(d). For purposes of this paragraph 7(d) and paragraphs 7(aSection 6.04(d), 7(b) and 7(c), any dividend rights or distribution warrants distributed by the Company to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision all or combination substantially all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common the Company’s Capital Stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock, such subdivision or combination or such rights or warrants to which paragraphs 7(a), 7(b; (ii) and7(care not exercisable; and (iii) apply, respectively (and any Conversion Rate increase required by this paragraph 7(d) with are also issued in respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such future issuances of shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 6.04(d) (and no adjustment to the Conversion Rate under this Section 6.04(d) will be required) until the occurrence of the earliest Trigger Event, whereupon such subdivision rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 6.04(d), except as set forth in Section 6.15. If any such rights or combination warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or 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 Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Section 6.15. In addition, except as set forth in Section 6.15, 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 the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 6.04(d) was made (including any adjustment contemplated by Section 6.15), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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 or holders of Common Stock with respect to such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to assuming 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “the date fixed for the determination of stockholders entitled to receive holder had retained such rights or warrants”), “the Record Date fixed for the determination made to all holders of Common Stock as of the stockholders entitled to receive date of such redemption or repurchase, and (2) in the case of such rights or warrants” and such “Record Date” within warrant that shall have expired or been terminated without exercise by any holders thereof, the meaning of paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination Conversion Rate shall be disregarded in connection with readjusted as if such dividend or distributionrights and warrants had not been issued.
(e) In case the Company shall, by shall pay a dividend or otherwise, otherwise distribute to all or substantially all holders of its Common Stock, Stock a dividend or other distribution consisting exclusively of cash (excluding any cash that is distributed as part dividend or distribution made in connection with the liquidation, dissolution or winding up of a distribution referred to in paragraph 7(d) hereofthe Company, whether voluntary or involuntary), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall will be increased so that adjusted based on the same shall equal the price determined by multiplying following formula: where CR0 = the Conversion Rate in effect immediately prior to at the close Close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock Business on the Trading Day next succeeding immediately preceding the last Ex-Dividend date on which tenders for such dividend or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying distribution; CR1 = the Conversion Rate in effect immediately prior to close of business on the date Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Last Reported Sale Price Prices of the Common Stock on during the 10 consecutive Trading Day period ending on, and including, the Trading Day next succeeding immediately preceding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made Ex-Dividend Date for such tender offer dividend or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:distribution; and
Appears in 2 contracts
Samples: First Supplemental Indenture (Evergreen Solar Inc), First Supplemental Indenture (Evergreen Solar Inc)
Adjustment of Conversion Rate. The Conversion Rate conversion rate shall be subject to adjustments, calculated by the Company, adjustment from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in or shall effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the subdivision into a greater number of shares of Common Stock outstanding or combination into a lesser number of shares of Common Stock, the conversion rate shall be adjusted so that the same shall equal the rate determined by multiplying the conversion rate in effect at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distributiondistribution or subdivision or combination, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or madeas applicable, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, ,
(i) the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 on the close of business on the such Record Date plus the total number of additional shares of Common Stock so offered for subscription as if such dividend payment, distribution, subdivision or purchase (or into which the convertible securities so offered are convertible), combination had occurred at such time; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on such Record Date, such adjustment to become effective immediately after the opening of business on the day following the Record Date plus for such determination.
(b) In case the Company shall issue or distribute rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring 60 days or less from the date of issuance of such rights or warrants) to purchase shares of Common Stock (or securities convertible into Common Stock) at less than (or having a conversion price per share less than) the Current Market Price of the Common Stock on the Record Date for such issuance or distribution, the conversion rate shall be adjusted so that the same shall equal the rate determined by multiplying the conversion rate in effect at the close of business on the Record Date for such distribution by a fraction,
(i) the numerator of which shall be the number of shares which of Common Stock outstanding at the aggregate offering price close of business on the Record Date for such issuance or distribution plus the total number of additional shares so of Common Stock offered for subscription or purchase or issuable pursuant to such rights or warrants, and
(ii) the denominator of which shall be (1) the number of shares of Common Stock outstanding at the close of business on the Record Date for such issuance or distribution plus (2) the quotient obtained by dividing (x) the aggregate Conversion Price price payable to exercise such rights by (y) the average of the convertible securities so offered) would purchase at Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days prior to the business day immediately preceding the announcement date for such Current Market Pricedistribution. Such adjustment shall be successively made whenever any such rights or warrants are issued, and 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 issuance or warrantsdistribution. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate conversion rate shall be readjusted to the Conversion Rate which conversion rate that would then be in effect had the adjustments made upon the issuance or distribution of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate conversion rate shall again be adjusted to be the Conversion Rate which conversion rate that would then be in effect if such date fixed Record Date for the determination of stockholders entitled to receive such rights issuance or warrants distribution 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.
(dc) (i) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Capital Stock of the Company (other than any dividends or distributions to which paragraph 7(a) appliesCommon Stock as covered by Section 10.06(a)) or evidences of its indebtedness indebtedness, cash or other assets, assets (including securitiessecurities other than Common Stock, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(ecovered by Section 10.06(b), Section 10.06(d) or Section 10.06(e)) (the securities described in foregoing clauses (1)and (2) any of such shares of Capital Stock, indebtedness, cash or other assets hereinafter in this paragraph 7(dSection 10.06(c)) called the “excluded securitiesDistributed Property”)), then, in each such case, subject to case the second succeeding paragraph of this paragraph 7(d), the Conversion Rate conversion rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate conversion rate in effect immediately prior to at the close of business on the Record Date with respect to such issuance or distribution by a fraction:,
(1) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Distributed Property 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). Such increase shall , such adjustment to become effective immediately prior to after the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value (as so determined) of the portion of the securities Distributed Property 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 receive, for each $1,000 principal amount of Securities upon conversion of a Note (or any portion thereof) conversion, the amount of securities so distributed (other than excluded securities) Distributed Property such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior owned an amount of shares of Common Stock equal to such the conversion rate on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate conversion rate shall again be adjusted to be the Conversion Rate which conversion rate that 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 paragraph 7(dSection 10.06(c) 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 paragraph 7(g) to on 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 2 contracts
Samples: Indenture (WebMD Health Corp.), Indenture (WebMD Health Corp.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time (without duplication) by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. For the purpose of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 17.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights, options or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days immediately preceding the declaration date for such distribution, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights, options or warrants by a fraction,
(i) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such rights, options or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and
(ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such rights, options or warrants plus the number of shares that the aggregate offering price of the total number of shares so offered would purchase at a price equal to the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Days immediately preceding the declaration date for such distribution. Such adjustment shall be successively made whenever any such rights, options or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such rights, options or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights, options or warrants had not been fixed. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at a price less than the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days immediately preceding the declaration date for such distribution, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness indebtedness, property or assets (including rights, options, warrants and other assets, including securities, but excluding (1) any rights rights, options or warrants referred to in paragraph 7(cSection 17.05(b), and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 17.05(a)) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 17.05(d) called the “excluded securities”"Distributed Property"), then, in each such case, subject case (unless the Company elects to reserve such Distributed Property for distribution to the second succeeding paragraph Debentureholders upon the conversion of this paragraph 7(d)the Debentures so that any such holder converting Debentures will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Distributed Property that such holder would have received if such holder had converted its Debentures into Common Stock immediately prior to the Record Date for such distribution of the Distributed Property) the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Distributed Property 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value Fair Market Value (as so determined) of the portion of the securities Distributed Property 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 Debentureholder shall have the right to receive upon conversion on the date of a Note (such dividend or any portion thereof) distribution the amount of securities so distributed (other than excluded securities) Distributed Property such Holder holder would have received had such Holder holder converted such Note (or portion thereof) immediately prior to such each Debenture on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 17.05(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 paragraph 7(g) to on 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 . Notwithstanding the meaning of paragraph 7(a)foregoing, (y) “if the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 Distributed Property distributed by the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock consist of capital stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (unless such capital stock or similar equity interests are distributed to the Debentureholders in such distribution as if such holders had converted their Debentures into shares of Common Stock, cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such the Record Date with respect to such distribution by a fraction:,
(i) The the numerator of which shall be equal to the Current sum of (A) the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive 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, the NASDAQ National Market Price or such other national or regional exchange or market on which such Record securities are then listed or quoted (the "Ex-Dividend Date, ") plus (B) the average Closing Sales Prices of the securities distributed in respect of each share of Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and
(ii) the denominator 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 average of the cash distributed and (y) the number of shares of Common Stock outstanding on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders Closing Sale Prices of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by for the Company or any of its Subsidiaries for shares of Common Stock to ten (10) consecutive Trading Days commencing on and including the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the fifth Trading Day next succeeding after the last date on which tenders or exchanges may be made pursuant Ex-Dividend Date, such adjustment to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event such Record Date; provided that the Company is obligated to purchase shares pursuant to any such tender offer or exchange offer, but may in lieu of the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no foregoing adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms make adequate provision so that each Debentureholder shall have the meanings indicated:right to receive on the date of such distribution the amount of Distributed Property such holder would have received had such holder converted each Debenture on the Record Date with respect to such distribution; and provided further that if (x) the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date minus (y) the average of the Closing Sale Prices of the securities distributed in respect of each share Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date is less than $1.00, then the adjustment provided by for by this paragraph shall not be made and in lieu thereof the provisions of the first paragraph of this Section 17.05(d) shall apply to such distribution. In any case in which this paragraph is applicable, Section 17.05(a), Section 17.05(b) and the first paragraph of this Section 17.05(d) shall not be applicable. Rights, options 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, options or warrants, until the occurrence of a specified event or events ("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, shall be deemed not to have been distributed for purposes of this
Appears in 2 contracts
Samples: Indenture (Commscope Inc), Indenture (Commscope Inc)
Adjustment of Conversion Rate. The Conversion Rate Unless otherwise specified as contemplated by Section 2.2 for Debt Securities of such series, the conversion rate for Debt Securities in effect at any time shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter pay (i) declare a dividend or make a distribution to all holders on the class of the outstanding Common Capital Stock into which Debt Securities of such series are convertible in shares of Common its Capital Stock, (ii) subdivide the Conversion Rate outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a greater number of shares, (iii) combine the outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a smaller number of shares, or (iv) issue by reclassification of the shares of the class of Capital Stock into which Debt Securities of such series are convertible (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares, the conversion rate for the Debt Securities of such series in effect at the opening time of business on the record date following for such dividend or distribution, or the effective date fixed of such subdivision, combination or reclassification, shall be proportionately adjusted so that the holder of any series of Debt Securities of such series surrendered for the determination of stockholders conversion after such time shall be entitled to receive the number and kind of shares which he would have owned or have been entitled to receive had such dividend or other distribution Debt Security been converted immediately prior to such time. Similar adjustments shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which made whenever any event listed above shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredoccur.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 fix a record date for the issuance of rights or warrants to all holders of its outstanding shares the class of Common Capital Stock into which Debt Securities of such series are convertible entitling them (for a period of not more than 60 daysexpiring within 45 days after such record date) to subscribe for or purchase shares of Common such class of Capital Stock (or securities convertible into Common shares of such class of Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, having a Conversion Price conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class of Capital Stock, so issuable) less than the Current Market Price current market price per share of such class of Capital Stock (as defined in subsection (d) below) on the Record Date fixed for date on which such issuance was declared or otherwise announced by the determination of stockholders entitled to receive such rights or warrantsCompany (the "DETERMINATION DATE"), the Conversion Rate number of shares of such class of Capital Stock into which each $1,000 principal amount of Debt Securities shall be adjusted so that the same convertible after such record date shall equal the price be determined by multiplying the Conversion Rate in effect at the opening number of business on the shares of such class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date after such Record Date by a fraction:
(1) , of which the numerator of which shall be the number of shares of Common such class of Capital Stock outstanding on the close of business on the Record Determination Date plus the total number of additional shares of Common such class of Capital Stock so offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible securities so offered are initially convertible), and
(2) and of which the denominator of which shall be the number of shares of Common such class of Capital Stock outstanding at the close of business on the Record Determination Date plus the number of shares which of such class of Capital Stock obtained by dividing the aggregate offering price of the total number of shares so offered for subscription (or, in the case of a right or warrant to purchase (or securities convertible into such class of Capital Stock, the aggregate Conversion Price initial conversion price of the convertible securities so offered, after adding thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities) would purchase at by such Current Market Pricecurrent market price. Shares of such class of Capital Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled be made successively whenever such a record date is fixed; and to receive such rights or warrants. To the extent that shares of Common such class of Capital Stock are not delivered (or securities convertible into Common Stock) shares of such class of Capital Stock are not delivered pursuant to such rights or warrants, upon delivered) after the expiration or termination of such rights or warrants (or, in the Conversion Rate case of rights or warrants to purchase securities convertible into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate shall be readjusted to the Conversion Rate conversion rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made on upon 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. .
(c) In determining whether case the Company shall fix a record date for the making of a distribution to all holders of the class of Capital Stock into which Debt Securities of such series are convertible (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above) or subscription rights or warrants entitle (excluding subscription rights or warrants to purchase the holders to subscribe for or purchase class of Capital Stock into which Debt Securities of such series are convertible), the number of shares of Common such class of Capital Stock at less than such Current Market Price, and in determining the aggregate offering price into which each $1,000 principal amount of Debt Securities of such series shall be convertible after such record date shall be determined by multiplying the number of shares of Common Stocksuch class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date by a fraction, there of which the numerator shall be taken into account any consideration received for such rights or warrants, the fair market value of the assets of the Company, after deducting therefrom all liabilities of the Company and all preferences (including accrued but unpaid dividends) in respect of classes of Capital Stock having a preference with respect to the assets of the Company over such consideration if other than cash, to be class of Capital Stock (all as determined by the Board of Directors.
(d) In case the Company shall, whose determination shall be conclusive, and described in a certificate signed by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Chairmen of the Company Board, President or any Vice President (other than any dividends or distributions to which paragraph 7(a) applies) or evidences regardless of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cVice Presidential designation) and (3the Chief Financial Officer or Treasurer of the Company, filed with the Trustee and each conversion agent) dividends on such record date, and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which the denominator shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on fair market value after deducting therefrom such dateliabilities and preferences, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutionstatement filed with the Trustee and each conversion agent) on Such date of the portion assets or evidences of the securities or other assets indebtedness, so distributed (other than excluded securities) applicable to one share or of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date)such subscription rights or warrants applicable, so distributed. Such increase adjustment shall become effective immediately prior to the opening of business on the day following the Record Date. However, be made successively whenever such a record date is fixed; and 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such dividend or distribution record date had not been declared. If fixed.
(d) For the Board of Directors determines the fair market value purpose of any distribution for purposes of this paragraph 7(dcomputation under subsection (b) by reference to above and Section 13.6, the actual or when issued trading current 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 paragraph 7(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 price per share of the Holder. For purposes Capital Stock on any date as of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution which such price is to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), be computed shall be deemed instead to be:
(1) a dividend or distribution mean the average 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 Closing Prices for the determination of stockholders entitled to receive 30 consecutive Business days commencing 45 Business days before such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributiondate.
(e) In case No adjustment in the Company shallconversion rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments which by dividend or otherwisereason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, distribute and provided, further, that adjustments shall be required and made in accordance with the provisions of this Article XIII (other than this subsection (e)) not later than such time as may be required in order to all holders of its Common Stock, cash (excluding any cash that is distributed as part preserve the tax-free nature of a distribution referred for United States income tax purposes to the holders of Debt Securities or the class of Capital Stock into which such Debt Securities are convertible. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in paragraph 7(d) hereof), then and in each such case, immediately after this Section 13.5 to the close of business on such datecontrary notwithstanding, the Conversion Rate Company shall be increased so entitled to make such adjustments in the conversion rate, in addition to those required by this Section 13.5, as it in its discretion shall determine to be advisable in order that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior any stock dividend, subdivision of shares, distribution of rights to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Datepurchase stock or securities, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredtaxable for United States income tax purposes.
(f) In case Whenever the conversion rate is adjusted, as herein provided, the Company shall promptly file with the Trustee and with the office or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, agency maintained by the Company for the conversion of Debt Securities of such series pursuant to Section 4.2, a certificate of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the regular accountants employed by the Company) setting forth the conversion rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness of such adjustment. 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 its Subsidiaries for shares Debt Securities of Common Stock such series desiring to inspect the same. The Company shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the extent holders of Debt Securities of such series, as their names and addresses appear upon the registration books of the Company.
(g) In the event that the cash and fair market value at any time, as a result of shares of any other consideration included class of Capital Stock becoming issuable in exchange or substitution for or in lieu of shares of the payment per share class of Common Capital Stock exceeds the Sale Price per share into which such Debt Securities are convertible or as a result of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be an adjustment made pursuant to subsection (a) above, the holder of any series of Debt Securities of such tender offer or exchange offer series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of the class of Capital Stock into which the Debt Securities of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any series of Debt Securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the class of Capital Stock into which the Debt Securities of such series are convertible contained in subsections (the “Expiration Time”a) to (f), theninclusive, above, and in each the provisions of this Article XIII with respect to the class of Capital Stock into which the Debt Securities of such case, the Conversion Rate series are convertible shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior apply on like terms to close of business on the date of the Expiration Time by a fraction:any such other shares.
(1h) the numerator 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 The conversion rate with respect to any maximum specified in Debt Securities with original issue discount, the terms of which provide for convertibility, shall not be adjusted during the tender offer or exchange offer) term of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, andOriginal Issue Discount Securities for accrued original issue discount.
(2i) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to Debt Securities of any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases series are rescindedconvertible into more than one class of Capital Stock, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application provisions of this paragraph 7(f) Section 13.5 shall apply separately to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for events affecting each such tender offer or exchange offer under this paragraph 7(f)class.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 2 contracts
Samples: Indenture (Viking Distillery Inc), Indenture (Roberts Trading Corp)
Adjustment of Conversion Rate. The Conversion Rate shall will be subject to adjustments, calculated by the Company, adjustments from time to time as follows:
(a1) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution Conversion Record Date shall be increased reduced by multiplying such Conversion Rate by a fraction:
: (1A) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date fixed for the determination of the holders entitled to such determination dividend or distribution; and (B) the denominator of which shall be the sum of such number of shares referred to in (A) above and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase reduction in the Conversion Rate shall become effective immediately after the opening of business on the day following the Conversion Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 3(d)(1) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that otherwise would then be in effect if such dividend or distribution had not been declared.
(b2) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increasedreduced, and conversely, in case the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reducedproportionately increased, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may beapplicable, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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.
(dA) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of capital stock Capital Stock of the Company (other than any dividends or distributions to which paragraph 7(aSection 3(d)(1) applies) or evidences of its indebtedness indebtedness, cash or other assets, including securities, but excluding dividends or distributions of stock, securities or other property or assets (1including cash) any rights in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or warrants referred conveyance to in paragraph 7(cwhich Section 3(e) and applies (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the such Capital Stock, evidences of its indebtedness, cash, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 3(d)(3) called the “excluded securitiesDistributed Assets”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Conversion Record Date with respect to such distribution by a fraction:
: (1i) The the numerator of which shall be such Current the Fair Market Price, and
(2) The denominator Value of which shall be the Current Market Price Common Stock of the Company on such date, date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolutionresolution) on Such such date of the portion of the securities or other assets Distributed 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 Conversion Record Date). ; and (ii) the denominator of which shall be such Fair Market Value of the Common Stock of the Company on such date.
(B) Such increase reduction in the Conversion Rate shall become effective immediately prior to the opening of business on the day following the Conversion Record Date. However, in the event that the then fair market value (as so determined) of the portion of the securities Distributed Assets so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Fair Market Price Value on the Conversion Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each the Holder of this Convertible Debenture shall have the right to receive upon conversion of a Note hereof (or any portion thereofhereof) the amount of securities so distributed (other than excluded securities) such Distributed Assets the Holder would have received had such the Holder converted such Note this Convertible Debenture (or portion thereofhereof) immediately prior to such Conversion Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which otherwise would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 2 contracts
Samples: Convertible Security Agreement (Teamstaff Inc), Convertible Security Agreement (Teamstaff Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by adjustments (or securities or other property other than ADSs representing the Company, right to receive shares of Common Stock may become issuable) from time to time as follows:set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.
(a1) In case the Company shall hereafter pay or make a dividend or make a other distribution to all holders on any class of capital stock of the outstanding Common Stock Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The distribution and the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. If For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the type described Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this paragraph 7(aSection) is declared but not so paid of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or madewarrants, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall again be adjusted to the increased by multiplying such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would then be purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in effect if such dividend the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights, options or distribution had not been declaredwarrants in respect of shares of Common Stock held in the treasury of the Company.
(b3) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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.
(c4) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted Subject to the Conversion Rate which would then be last sentence of paragraph (7) of this Section, in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness stock, or other assets, property (including securities, but excluding (1i) any rights rights, options or warrants referred to in paragraph 7(c(2) and of this Section, (3ii) dividends and distributions any dividend or distribution paid exclusively in cash cash, (iii) any dividend or distribution referred to in paragraph 7(e(1) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(dSection and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect date fixed for the determination of stockholders entitled to receive such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such date, determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth described in a Board ResolutionResolution filed with the Trustee) on Such date the Reference Date of the portion of the securities assets, shares or other assets evidences of indebtedness 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Record Reference 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(e5) In case the Company shall, by dividend or otherwiseotherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common StockStock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (excluding and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash that is distributed and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as part of a distribution referred to provided in paragraph 7(d(8) of this Section) hereofof the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then then, and in each such case, immediately after the close of business on such datedate for determination, the Conversion Rate shall be increased adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such Record Date distribution by a fraction:
(i) The numerator fraction of which the numerator shall be equal to the Current Market Price current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such Record Date, and
(ii) the denominator of which shall be equal to the Current Market Price on the Record Date date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate amount of the cash distributed and current market price divided by (y) the number of shares of Common Stock outstanding on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declareddate for determination.
(f6) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, offer made by the Company or any Subsidiary for all or any portion of its Subsidiaries for shares of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to the extent stockholders of Excess Payments in an aggregate amount that the cash and fair market value combined together with (I) all Excess Payments payable in respect of any other consideration included tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the payment aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock exceeds the Sale Price per share (determined as provided in paragraph (8) of Common Stock on the Trading Day next succeeding this Section) as of the last date on which time (the "Expiration Time") tenders or exchanges may be could have been made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall as it may be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1amended) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price as of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective , then, and in each such case, immediately prior to the opening of business on the day following after the date of the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights or warrants (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, in each case in clauses (i) through (iii) until the occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For 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 in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate which would then shall be in effect if required unless such tender offer or exchange offer had adjustment (plus any adjustments not been made. If the application previously made by reason of this paragraph 7(f(9)) to any tender offer or exchange offer would result in require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) 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.
(10) The Company may make such increases in the Conversion Rate, no adjustment shall for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be made advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such tender offer or exchange offer under this paragraph 7(f)for income tax purposes.
(g11) For purposes In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due xxxx or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this paragraph 7Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the following terms Conversion Rate (as so changed) shall have the meanings indicated:be adjusted proportionately.
Appears in 2 contracts
Samples: Indenture (Telefonos De Mexico S a De C V), Indenture (Telefonos De Mexico S a De C V)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjustments from time to time as follows:
(a1) In case the Company shall hereafter pay or make a dividend or make a other distribution to all holders on any class of capital stock of the outstanding Common Stock Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date day following the date fixed Determination Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction:
fraction (1a) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on such Determination Date and (b) the Record Date fixed for denominator of which shall be the sum of such determination number of shares and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall to become effective immediately after the opening of business on the day following the Record such Determination Date. If For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the type described Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this paragraph 7(aSection 12.4) is declared but not so paid or madeof the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall again be adjusted to the increased by dividing such Conversion Rate by a fraction (a) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would then purchase at such current market price and (b) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in effect if such dividend the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or distribution had not been declaredwarrants in respect of shares of Common Stock held in the treasury of the Company.
(b3) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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.
(c4) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted Subject to the Conversion Rate which would then be last sentence of paragraph (7) of this Section, in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness stock, or other assets, property (including securities, but excluding (1i) any rights rights, options or warrants referred to in paragraph 7(c(2) and of this Section, (3ii) dividends and distributions any dividend or distribution paid exclusively in cash cash, (iii) any dividend or distribution referred to in paragraph 7(e(1) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(dSection and (iv) any merger or consolidation to which Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the Record Determination Date with respect to for such distribution by a fraction:
fraction (1a) The the numerator of which shall be such Current Market Price, and
the current market price per share (2determined as provided in paragraph (8) of this Section 12.4) The denominator of which shall be the Current Market Price Common Stock on such date, Determination Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth described in a Board ResolutionResolution filed with the Trustee) on Such date of the portion of the securities assets, shares or other assets evidences of indebtedness so distributed (other than excluded securities) applicable to one share of Common Stock and (determined on b) the basis denominator of the number of shares which shall be such current market price per share of the Common Stock outstanding on the Record Date). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Record such Determination 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(d(4) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution (other than excluded securities)distribution, 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 current market price per share pursuant to paragraph 7(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 (8) of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributionSection.
(e5) In case the Company shall, by dividend or otherwise, distribute make a Cash Distribution in an aggregate amount that, combined with (i) the aggregate amount of any other Cash Distributions made within the 12 months preceding the date of payment of such distribution in respect of which no adjustment pursuant to all holders this paragraph (5) has been made and (ii) any Excess Purchase Payment made within the 12 months preceding the date of its Common Stocksuch distribution and in respect of which no adjustment has been made pursuant to paragraph (6) of this Section 12.4, cash (excluding any cash that is distributed as part exceeds 10% of a distribution referred to in paragraph 7(d) hereof)the Company's Market Capitalization on the Determination Date for such Cash Distribution, then then, and in each such case, immediately after the close of business on the Determination Date for such dateCash Distribution, the Conversion Rate shall be increased adjusted so that the same shall equal the price rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on such Record Determination Date by a fraction:
fraction (ia) The the numerator of which shall be equal to the Current Market Price current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such Record Date, and
Determination Date less an amount equal to the quotient of (ii1) the amount of such excess divided by (2) the number of shares of Common Stock outstanding on such Determination Date and (b) the denominator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient current market price per share (determined as provided in paragraph (8) of (xthis Section 12.4) the aggregate amount of the cash distributed and (y) the number of shares of Common Stock outstanding on the Record such Determination Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f6) In case the Company or any Subsidiary shall make an Excess Purchase Payment in an aggregate that, combined with (i) the aggregate amount of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, any other than an odd-lot offer, Excess Purchase Payments made by the Company or any Subsidiary within the 12 months preceding such Excess Purchase Payment in respect of its Subsidiaries for shares of Common Stock which no adjustment pursuant to this paragraph (6) has been made and (ii) the extent that the cash and fair market value aggregate amount of any other consideration included Cash Distributions made within the 12 months preceding such Excess Purchase Payment in the payment per share respect of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made no adjustment pursuant to such tender offer or exchange offer paragraph (5) of this Section 12.4 has been made, exceeds 10% of the “Expiration Time”)Company's Market Capitalization as of the Determination Date, then, and in each such case, immediately prior to the opening of business on the day after the tender offer in respect of which such Excess Purchase Payment is to be made expires, the Conversion Rate shall be adjusted so that the same shall equal the price rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date of the Expiration Time Determination Date for such tender offer by a fraction:
fraction (1a) the numerator of which shall be the sum of equal (x1) 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 maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased SharesA) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at such Determination Date less (B) the Expiration Time multiplied by amount of such excess and (b) the Sale Price denominator of which shall be equal to the product of (X) the current market price per share of the Common Stock on (determined as provided in paragraph (8) of this Section 12.4) as of such Determination Date multiplied by (Y) the Trading Day next succeeding number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time. Such increase Determination Date less the number of all shares validly tendered and not withdrawn as of the Determination Date.
(if any7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 12.11 applies) shall become be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be the Determination Date), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the opening number of business shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section 12.4). Rights or warrants issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights or warrants (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, in each case in clauses (i) through (iii) until the occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 12.4 not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this Section 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For 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 in the applicable securities market or on the day following applicable securities exchange without the Expiration Time. In the event that the Company is obligated right to purchase shares pursuant to any receive such tender offer issuance or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, distribution.
(9) No adjustment in the Conversion Rate shall again be adjusted required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph (9) 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.
(10) The Company may make such increases in the Conversion Rate which would then Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 12.4, as it considers to be advisable in effect if order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such tender offer for income tax purposes. The Company shall have the power to resolve any ambiguity or exchange offer had not been made. If correct any error in the application of this paragraph 7(f(10) to any tender offer or exchange offer would result and its actions in an increase in the Conversion Rateso doing shall, no adjustment shall absent manifest error, be made for such tender offer or exchange offer under this paragraph 7(f)final and conclusive.
(g11) For purposes The Company from time to time at its option may increase the Conversion Rate by any amount for any period of at least 20 calendar days if the Board of Directors has made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive and evidenced by a Board Resolution. To exercise this paragraph 7option the Company shall provide a written notice to the Trustee and the Holders in accordance with Sections 1.5 and 1.6 at least 15 calendar days prior to the first day of the period during which the Conversion Rate will be adjusted stating that the Conversion Rate will be adjusted pursuant to this provision, the following terms shall have period during which the meanings indicated:adjusted Conversion Rate will be in effect and the adjusted Conversion Rate.
Appears in 2 contracts
Samples: Indenture (Interim Services Inc), Indenture (Interim Services Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, in each case, to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where CR0 = the Conversion Rate in effect at the opening Close of business Business on the date following Trading Day immediately preceding the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such distribution; CR1 = the Conversion Rate by a fraction:
(1) in effect on the numerator of which shall be the sum of Ex-Dividend Date for such dividend or distribution; OS0 = the number of shares of Common Stock outstanding at the close Close of business Business on the Record Trading Day immediately preceding the Ex-Dividend Date fixed for such determination dividend or distribution; and OS1 = the total number of shares constituting of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend or other distribution, and
(2. Any adjustment made pursuant to this Section 6.04(a) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after prior to the opening Open of business Business on the day following the Record DateEx-Dividend Date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this paragraph 7(aSection 6.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Company publicly announces its decision not to make such dividend or distribution, to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 6.04(a), the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution shall not include shares of Common Stock held in treasury, if any. The Company will not pay any dividend or make any distribution on Common Stock held in treasury, if any.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be or combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where CR0 = the Conversion Rate in effect at the opening Close of business Business on the day following Trading Day immediately preceding the day upon which effective date of such combination becomes effective shall be reduced, in each such case, by multiplying such subdivision or combination; CR1 = the Conversion Rate by a fraction, in effect on the numerator effective date of which shall be such subdivision or combination; OS0 = the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately after giving effect to preceding the effective date of such subdivision or combination combination; and the denominator of which shall be OS1 = the number of shares of Common Stock that would be outstanding immediately prior to after, and solely as a result of, such subdivision or combination. Such reduction or increase, as the case may be, Any adjustment made pursuant to this Section 6.04(b) shall become effective immediately after prior to the opening Open of business Business on the day following the day upon which effective date of such subdivision or combination becomes effectivecombination.
(c) In case the Company shall issue rights (other than rights issued pursuant to a stockholder rights plan) or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (to purchase, for a period expiring within 45 calendar days of not more the date of announcement, Common Stock at an aggregate price per share less than 60 days) to subscribe the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date that the issuance of the rights or warrants was first publicly announced, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS0 + X OS0 + Y where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for or purchase such issuance; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock (or securities convertible into Common Stock) outstanding at a price per share (or having a Conversion Price per share) less than the Current Market Price Close of Business on the Record Trading Day immediately preceding the Ex-Dividend Date fixed for such issuance; X = the determination total number of stockholders entitled shares of Common Stock issuable pursuant to receive such rights or warrants; and Y = the number of shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. Any adjustment made pursuant to this Section 6.04(c) shall become effective immediately prior to the Open of Business on the Ex-Dividend Date for such issuance. In the event that such rights or warrants described in this Section 6.04(c) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 determining the event that aggregate price payable to exercise such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 Stockwarrants, there shall be taken into account any consideration received by the Company for such rights or warrants, warrants and the value of such consideration (if other than cash, to be determined by the Company’s Board of Directors). For purposes of this Section 6.04(c), the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance shall not include shares of Common Stock held in treasury, if any. The Company will not issue any rights or warrants in respect of shares of Common Stock held in treasury, if any.
(d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Common Stock Stock, shares of any class of capital stock the Company’s Capital Stock, evidences of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its Company’s indebtedness or other assets, including securities, but excluding excluding:
(1i) any dividends or distributions referred to in Section 6.04(a) above;
(ii) shares delivered in connection with subdivisions of Common Stock referred to in Section 6.04(b) above;
(iii) any rights or warrants referred to in paragraph 7(cSection 6.04(c) and above;
(3iv) dividends and distributions paid exclusively in cash any rights or warrants referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding last paragraph of this paragraph 7(dSection 6.04(d) below (to the extent and as specified therein);
(v) any dividends or distributions referred to in Section 6.04(e) below; and
(vi) any Public Spin-Offs to which the provisions set forth below in this Section 6.04(d) applies, then for these non-excluded transactions and events, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x XX0 XX0 - FMV where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors) on the Ex-Dividend Date for such distribution of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this Section 6.04(d) is, however, one pursuant to which the payment of a dividend or other distribution on Common Stock consists of shares of Capital Stock of any class or series of, or similar equity interests in, a Subsidiary or other business unit of the Company (i.e. a “spin-off”) that are, or when issued, will be, traded or listed on The Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), the Conversion Rate shall will be adjusted so that based on the same shall be equal to the price determined by multiplying following formula: CR1 = CR0 x FMV0 + MP0 MP0 where CR0 = the Conversion Rate in effect immediately prior to at the close Close of business Business on the Record Trading Day immediately preceding the Ex-Dividend Date with respect to for such distribution by a fraction:
(1) The numerator of which shall be distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such Current Market Price, and
(2) The denominator of which shall be distribution; FMV0 = 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 average of the portion Last Reported Sale Prices of the securities Capital Stock or other assets so similar equity interests distributed (other than excluded securities) in the Public Spin-Off to holders of Common Stock applicable to one share of Common Stock (determined during the 10 consecutive Trading Day period commencing on and including the basis effective date of the number Public Spin-Off (the “Public Spin-Off Valuation Period”); and MP0 = the average of shares the Last Reported Sale Prices of the Common Stock outstanding on during the Record Date)Public Spin-Off Valuation Period. Such increase Any adjustment made pursuant to this Section 6.04(d) shall become effective immediately prior to the opening Open of business Business on the day following the Record DateEx-Dividend Date for such distribution. 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 If 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 of the type described in this Section 6.04(d) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Company publicly announces its decision not to be pay such dividend or distribution, to the Conversion Rate which that 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 paragraph 7(d) by reference an adjustment 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 Conversion Rate is required pursuant to paragraph 7(gthis Section 6.04(d) during any settlement period in respect of Securities that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent possible, unless necessary in order to complete the Board of Directors calculations provided for 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 Holderthis Section 6.04(d). For purposes of this paragraph 7(d) and paragraphs 7(aSection 6.04(d), 7(b) and 7(c), any dividend rights or distribution warrants distributed by the Company to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision all or combination substantially all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common the Company’s Capital Stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock, such subdivision or combination or such rights or warrants to which paragraphs 7(a), 7(b; (ii) and7(care not exercisable; and (iii) apply, respectively (and any Conversion Rate increase required by this paragraph 7(d) with are also issued in respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such future issuances of shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 6.04(d) (and no adjustment to the Conversion Rate under this Section 6.04(d) will be required) until the occurrence of the earliest Trigger Event, whereupon such subdivision rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 6.04(d), except as set forth in Section 6.15. If any such rights or combination warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or 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 Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Section 6.15. In addition, except as set forth in Section 6.15, 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 the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 6.04(d) was made (including any adjustment contemplated by Section 6.15), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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 or holders of Common Stock with respect to such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to assuming 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “the date fixed for the determination of stockholders entitled to receive holder had retained such rights or warrants”), “the Record Date fixed for the determination made to all holders of Common Stock as of the stockholders entitled to receive date of such redemption or repurchase, and (2) in the case of such rights or warrants” and such “Record Date” within warrant that shall have expired or been terminated without exercise by any holders thereof, the meaning of paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination Conversion Rate shall be disregarded in connection with readjusted as if such dividend or distributionrights and warrants had not been issued.
(e) In case the Company shall, by shall pay a dividend or otherwise, otherwise distribute to all or substantially all holders of its Common Stock, Stock a dividend or other distribution consisting exclusively of cash (excluding any cash that is distributed as part dividend or distribution made in connection with the liquidation, dissolution or winding up of a distribution referred to in paragraph 7(d) hereofthe Company, whether voluntary or involuntary), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall will be increased so that adjusted based on the same shall equal the price determined by multiplying following formula: CR1 = CR0 x XX0 XX0 - C where CR0 = the Conversion Rate in effect immediately prior to at the close Close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock Business on the Trading Day next succeeding immediately preceding the last Ex-Dividend date on which tenders for such dividend or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying distribution; CR1 = the Conversion Rate in effect immediately prior to close of business on the date Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Last Reported Sale Price Prices of the Common Stock on during the 10 consecutive Trading Day period ending on, and including, the Trading Day next succeeding immediately preceding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made Ex-Dividend Date for such tender offer dividend or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:distribution; and
Appears in 2 contracts
Samples: First Supplemental Indenture (Evergreen Solar Inc), First Supplemental Indenture (Evergreen Solar Inc)
Adjustment of Conversion Rate. The Conversion Rate applicable to any series of Securities shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter (i) pay a dividend dividend, or make a distribution to all holders of the outstanding Common Stock distribution, in shares of Common Stock, on the Common Stock, (ii) subdivide the Outstanding Common Stock into a greater number of shares, (iii) combine the Outstanding Common Stock into a smaller number of shares, or (iv) reclassify the Common Stock, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at which such Holder would have owned or have been entitled to receive after the close happening of business on any of the Record Date fixed for events described above had such determination and Security been converted immediately prior to the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Dateevent. If any dividend or distribution of the type described in this paragraph 7(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. An adjustment made pursuant to this Section 11.4(a) shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of subdivision, combination or reclassification.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 rights, options or warrants to all holders of any class or series of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights, options or warrants) 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 Average Closing Market Price on at the Record Date fixed record date for the determination of stockholders entitled to receive such rights rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price Conversion Rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after of the issuance of such Record Date rights, options or warrants by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on the close date of business on the Record Date issuance of such rights, options or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into purchase, and of which the convertible securities so offered are convertible), and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date date of issuance of such rights, options or warrants 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 Average Closing Market Price. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date fixed record date for the determination of the 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 after the expiration of such rights rights, options or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Average Closing Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights rights, options or warrants, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(dc) In case the Company shall, by dividend or otherwise, distribute to all holders of its any class or series of Common Stock (excluding any distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary) any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) appliesCommon Stock) or evidences of its indebtedness or assets (other assetsthan Cash) or rights, including securities, but excluding (1) any rights options or warrants to subscribe for or purchase any of its Securities (excluding those referred to in paragraph 7(cSection 11.4(b) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(ehereof) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 11.4(c) called the “excluded securities”"Distributed Securities"), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close date of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Average Closing Market Price on 38 44 the record date described below, and the denominator shall be the Average Closing Market Price on such date, record date less the fair market value on such record date (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutioncertificate filed with the Trustee) on Such date of the portion of the securities or other assets Distributed Securities 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)Stock. Such increase adjustment shall become effective immediately prior after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the opening of business on the day following the Record Date. Howeverforegoing, in the event that the then fair market value (as so determined) of the portion of the securities Distributed Securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Average Closing Market Price on the Record Daterecord date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive receive, upon conversion of a Note (or any portion thereof) such Holder's Securities, the amount of securities so distributed (other than excluded securities) Distributed Securities such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to Securities on such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(dSection 11.4(c) 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 such Average Closing Market Price. Notwithstanding the Current Market Price pursuant to paragraph 7(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 foregoing provisions of this paragraph 7(d) and paragraphs 7(aSection 11.4(c), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made thereunder for any distribution of Distributed Securities if the Company makes proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after such record date for such tender offer distribution shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the amount and kind of Distributed Securities that such Holder would have been entitled to receive if such Holder had, immediately prior to such record date, converted such Security for Common Stock; provided that, with respect to any Distributed Securities that are convertible, exchangeable or exchange offer exercisable, the foregoing provision shall only apply to the extent (and so long as) the Distributed Securities receivable upon conversion of such Security would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Security. In the event the Company implements a stockholder rights plan, such rights plan shall provide that upon conversion of the Securities the Holders shall receive, in addition to the Common Stock issuable upon such conversion, the rights issued under this paragraph 7(fsuch rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 2 contracts
Samples: Indenture (Kiewit Materials Co), Indenture (Peter Kiewit Sons Inc /De/)
Adjustment of Conversion Rate. The Conversion Rate Unless otherwise specified as contemplated by Section 2.2 for Debt Securities of such series, the conversion rate for Debt Securities in effect at any time shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter pay (i) declare a dividend or make a distribution to all holders on the class of the outstanding Common Capital Stock into which Debt Securities of such series are convertible in shares of Common its Capital Stock, (ii) subdivide the Conversion Rate outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a greater number of shares, (iii) combine the outstanding shares of the class of Capital Stock into which Debt Securities of such series are convertible into a smaller number of shares, or (iv) issue by reclassification of the shares of the class of Capital Stock into which Debt Securities of such series are convertible (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares, the conversion rate for the Debt Securities of such series in effect at the opening time of business on the record date following for such dividend or distribution, or the effective date fixed of such subdivision, combination or reclassification, shall be proportionately adjusted so that the holder of any series of Debt Securities of such series surrendered for the determination of stockholders conversion after such time shall be entitled to receive the number and kind of shares which he would have owned or have been entitled to receive had such dividend or other distribution Debt Security been converted immediately prior to such time. Similar adjustments shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which made whenever any event listed above shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredoccur.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 fix a record date for the issuance of rights or warrants to all holders of its outstanding shares the class of Common Capital Stock into which Debt Securities of such series are convertible entitling them (for a period of not more than 60 daysexpiring within 45 days after such record date) to subscribe for or purchase shares of Common such class of Capital Stock (or securities convertible into Common shares of such class of Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, having a Conversion Price conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class of Capital Stock, so issuable) less than the Current Market Price current market price per share of such class of Capital Stock (as defined in subsection (d) below) on the Record Date fixed for date on which such issuance was declared or otherwise announced by the determination of stockholders entitled to receive such rights or warrantsCompany (the "DETERMINATION DATE"), the Conversion Rate number of shares of such class of Capital Stock into which each $1,000 principal amount of Debt Securities shall be adjusted so that the same convertible after such record date shall equal the price be determined by multiplying the Conversion Rate in effect at the opening number of business on the shares of such class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date after such Record Date by a fraction:
(1) , of which the numerator of which shall be the number of shares of Common such class of Capital Stock outstanding on the close of business on the Record Determination Date plus the total number of additional shares of Common such class of Capital Stock so offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible securities so offered are initially convertible), and
(2) and of which the denominator of which shall be the number of shares of Common such class of Capital Stock outstanding at the close of business on the Record Determination Date plus the number of shares which of such class of Capital Stock obtained by dividing the aggregate offering price of the total number of shares so offered for subscription (or, in the case of a right or warrant to purchase (or securities convertible into such class of Capital Stock, the aggregate Conversion Price initial conversion price of the convertible securities so offered, after adding thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities) would purchase at by such Current Market Pricecurrent market price. Shares of such class of Capital Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled be made successively whenever such a record date is fixed; and to receive such rights or warrants. To the extent that shares of Common such class of Capital Stock are not delivered (or securities convertible into Common Stock) shares of such class of Capital Stock are not delivered pursuant to such rights or warrants, upon delivered) after the expiration or termination of such rights or warrants (or, in the Conversion Rate case of rights or warrants to purchase securities convertible into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate shall be readjusted to the Conversion Rate conversion rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made on upon 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. .
(c) In determining whether case the Company shall fix a record date for the making of a distribution to all holders of the class of Capital Stock into which Debt Securities of such series are convertible (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above) or subscription rights or warrants entitle (excluding subscription rights or warrants to purchase the holders to subscribe for or purchase class of Capital Stock into which Debt Securities of such series are convertible), the number of shares of Common such class of Capital Stock at less than such Current Market Price, and in determining the aggregate offering price into which each $1,000 principal amount of Debt Securities of such series shall be convertible after such record date shall be determined by multiplying the number of shares of Common Stocksuch class of Capital Stock into which such principal amount of Debt Securities was convertible immediately prior to such record date by a fraction, there of which the numerator shall be taken into account any consideration received for such rights or warrants, the fair market value of the assets of the Company, after deducting therefrom all liabilities of the Company and all preferences (including accrued but unpaid dividends) in respect of classes of Capital Stock having a preference with respect to the assets of the Company over such consideration if other than cash, to be class of Capital Stock (all as determined by the Board of Directors.
(d) In case the Company shall, whose determination shall be conclusive, and described in a certificate signed by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Chairmen of the Company Board, President or any Vice President (other than any dividends or distributions to which paragraph 7(a) applies) or evidences regardless of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cVice Presidential designation) and (3the Chief Financial Officer or Treasurer of the Company, filed with the Trustee and each conversion agent) dividends on such record date, and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which the denominator shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on fair market value after deducting therefrom such dateliabilities and preferences, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutionstatement filed with the Trustee and each conversion agent) on Such date of the portion assets or evidences of the securities or other assets indebtedness, so distributed (other than excluded securities) applicable to one share or of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date)such subscription rights or warrants applicable, so distributed. Such increase adjustment shall become effective immediately prior to the opening of business on the day following the Record Date. However, be made successively whenever such a record date is fixed; and 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 Rate conversion rate shall again be adjusted to be the Conversion Rate conversion rate which would then be in effect if such dividend or distribution record date had not been declared. If fixed.
(d) For the Board of Directors determines the fair market value purpose of any distribution for purposes of this paragraph 7(dcomputation under subsection (b) by reference to above and Section 13.6, the actual or when issued trading current 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 paragraph 7(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 price per share of the Holder. For purposes Capital Stock on any date as of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution which such price is to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), be computed shall be deemed instead to be:
(1) a dividend or distribution mean the average 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 Closing Prices for the determination of stockholders entitled to receive 30 consecutive Business Days commencing 45 Business Days before such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributiondate.
(e) In case No adjustment in the Company shallconversion rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments which by dividend or otherwisereason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, distribute and provided, further, that adjustments shall be required and made in accordance with the provisions of this Article XIII (other than this subsection (e)) not later than such time as may be required in order to all holders of its Common Stock, cash (excluding any cash that is distributed as part preserve the tax-free nature of a distribution referred for United States income tax purposes to the holders of Debt Securities or the class of Capital Stock into which such Debt Securities are convertible. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in paragraph 7(d) hereof), then and in each such case, immediately after this Section 13.5 to the close of business on such datecontrary notwithstanding, the Conversion Rate Company shall be increased so entitled to make such adjustments in the conversion rate, in addition to those required by this Section 13.5, as it in its discretion shall determine to be advisable in order that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior any stock dividend, subdivision of shares, distribution of rights to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Datepurchase stock or securities, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredtaxable for United States income tax purposes.
(f) In case Whenever the conversion rate is adjusted, as herein provided, the Company shall promptly file with the Trustee and with the office or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, agency maintained by the Company for the conversion of Debt Securities of such series pursuant to Section 4.2, a certificate of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the regular accountants employed by the Company) setting forth the conversion rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness of such adjustment. 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 its Subsidiaries for shares Debt Securities of Common Stock such series desiring to inspect the same. The Company shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the extent holders of Debt Securities of such series, as their names and addresses appear upon the registration books of the Company.
(g) In the event that the cash and fair market value at any time, as a result of shares of any other consideration included class of Capital Stock becoming issuable in exchange or substitution for or in lieu of shares of the payment per share class of Common Capital Stock exceeds the Sale Price per share into which such Debt Securities are convertible or as a result of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be an adjustment made pursuant to subsection (a) above, the holder of any series of Debt Securities of such tender offer or exchange offer series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of the class of Capital Stock into which the Debt Securities of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any series of Debt Securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the class of Capital Stock into which the Debt Securities of such series are convertible contained in subsections (the “Expiration Time”a) to (f), theninclusive, above, and in each the provisions of this Article XIII with respect to the class of Capital Stock into which the Debt Securities of such case, the Conversion Rate series are convertible shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior apply on like terms to close of business on the date of the Expiration Time by a fraction:any such other shares.
(1h) the numerator 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 The conversion rate with respect to any maximum specified in Debt Securities with original issue discount, the terms of which provide for convertibility, shall not be adjusted during the tender offer or exchange offer) term of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, andOriginal Issue Discount Securities for accrued original issue discount.
(2i) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to Debt Securities of any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases series are rescindedconvertible into more than one class of Capital Stock, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application provisions of this paragraph 7(f) Section 13.5 shall apply separately to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for events affecting each such tender offer or exchange offer under this paragraph 7(f)class.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 2 contracts
Samples: Indenture (First Sierra Financial Inc), Indenture (Westell Technologies Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Issuer as set out in this Article 7. If any calculation is based on the Current Market Price or Closing Price, and any other amount or the price of a security used in the calculation is in a currency different than the currency of the Current Market Price or Closing Price being used in that calculation (the “Trading Currency”), that amount will be first converted to the Trading Currency on the basis of the appropriate Exchange Rate. The Conversion Rate shall be adjusted from time to time by the Issuer as set out as follows:
(a) In case If the Company shall hereafter pay Issuer pays a dividend or make makes a distribution to on all holders or substantially all of the its outstanding Common Stock Shares in shares of Common StockShares, the Conversion Rate in effect at immediately prior to the opening of business on the record date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by the Issuer by multiplying such the Conversion Rate in effect immediately prior to such record date by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock Shares outstanding at the close of business on the Record Date fixed for such determination and record date plus the total number of shares Common Shares constituting such dividend or other distribution, and
(2) The denominator distribution and of which the denominator shall be the sum of such number of sharesCommon Shares outstanding at the close of business on such record date. Such increase adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the opening purpose of business this subsection 7.1(a), the number of Common Shares at any time outstanding shall not include shares held in the treasury of the Issuer. The Issuer will not pay any dividend or make any distribution on Common Shares held in the day following treasury of the Record DateIssuer. If any dividend or distribution of the type described in this paragraph 7(a) clause is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) In case If the Issuer subdivides its outstanding shares of Common Stock shall be subdivided Shares into a greater number of shares shares, or combines its outstanding Common Shares into a smaller number of Common Stock (commonly referred to as a “forward split”)shares, the Conversion Rate in effect at the opening of business on the day following immediately prior to the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such or combination becomes effective shall be reducedbe, in each such casethe case of a subdivision of Common Shares, by multiplying such Conversion Rate by proportionately increased and, in the case of a fractioncombination of Common Shares, the numerator of which proportionately reduced. Such adjustment shall be the number of shares of Common Stock outstanding immediately after giving effect to made successively whenever any such subdivision or combination of the Common Shares occurs and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 date upon which such subdivision or combination becomes effective.
(c) In case If the Company shall Issuer fixes a record date for the issue rights of rights, options or warrants to all or substantially all holders of its outstanding shares of Common Stock Shares entitling them (for a period of not more than 60 daysexpiring within forty-five (45) days after the record date for such issuance) to subscribe for or purchase shares of Common Stock Shares (or securities convertible into Common StockConvertible Securities) (as defined below) at a price per share (or or, as the case may be, having a Conversion Price conversion price, exchange price or exercise price per share) less than 95% of the Current Market Price per Common Share on the Record Date fixed record date for the determination of stockholders shareholders entitled to receive such rights rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the immediately prior to such record date after such Record Date by a fraction:
(1) fraction of which the numerator 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), and
(2) the denominator of which shall be the number of shares of Common Stock Shares outstanding at the close of business on such record date plus the Record Date number of additional Common Shares that such rights, options or warrants entitle holders thereof to subscribe for or purchase (or into which such Convertible Securities are convertible, exercisable or exchangeable) and of which the denominator shall be the number of Common Shares outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares Common Shares so offered for subscription or purchase (or the aggregate Conversion Price conversion price of the convertible securities Convertible Securities so offeredoffered for subscription or purchase, which shall be determined by multiplying the number of Common Shares issuable upon conversion of such Convertible Securities by the conversion price per Common Share pursuant to the terms of such Convertible Securities) would purchase at such the Current Market PricePrice per Common Share on such record date. Such adjustment shall be made successively whenever any such rights, options or warrants (or Convertible Securities) are issued, and 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 warrantsrecord date. To the extent that shares of Common Stock Shares (or securities convertible into Common StockConvertible Securities) are not delivered pursuant to after the expiration of such rights rights, options or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights rights, options or warrants been made on the basis of the delivery of only the number of shares of Common Stock Shares (or securities convertible into Common StockConvertible Securities) actually delivered. In the event that If such rights rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such the record date fixed for the determination of stockholders shareholders entitled to receive such rights rights, options or warrants had not been fixed. In determining whether any rights rights, options or warrants entitle the holders shareholders to subscribe for or purchase shares of Common Stock Shares at a price less than such 95% of the Current Market Price, Price per Common Share and in determining the aggregate offering price of such shares the total number of Common StockShares so offered, there shall be taken into account any consideration received by the Issuer for such rights rights, options or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(d) In case If the Company shall, by Issuer pays a dividend or otherwise, distribute other distribution to all or substantially all holders of its Common Stock shares Shares consisting of any class evidences of capital stock indebtedness or other assets of the Company Issuer, including securities (other than excluding (i) any issuance of rights, options or warrants for which an adjustment was made pursuant to subsection 7.1(c), (ii) dividends or distributions in connection with a reclassification, consolidation, merger, combination, sale or conveyance resulting in a change in the conversion consideration pursuant to which paragraph 7(a) applies) subsection 7.5, or evidences of its indebtedness or other assetspursuant to any Rights Plan, including securities, but excluding (1iii) any rights dividend or warrants referred to in paragraph 7(c) and (3) dividends and distributions distribution paid exclusively in cash referred for which an adjustment was made pursuant to subsection 7.1(f) or (iv) any dividend or distribution paid in paragraph 7(eCommon Shares for which an adjustment was made pursuant to subsection 7.1(a)) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securitiesDistributed Property”), then, then in each such case, subject case (unless the Issuer distributes such Distributed Property for distribution to the second succeeding paragraph Holders of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect Debentures on such dividend or distribution date as if each Holder had converted such Debenture into Common Shares immediately prior to the close of business on the Record Date record date with respect to such distribution by a fraction:
(1distribution) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:multiplying
Appears in 1 contract
Samples: Subscription Agreement (Fairfax Financial Holdings LTD/ Can)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustmentsadjustment, calculated by the CompanyIssuer, from time to time as follows:
(a) In case the Company Guarantor shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock Ordinary Shares in shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the Record Date (as defined in Section 9.4(g)) fixed for such determination and plus the total number of shares constituting such dividend or other distribution, ; and
(2) The the denominator of which shall be the sum of such number of sharesOrdinary Shares outstanding at the close of business on such Record Date. Such increase adjustment shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 9.4(a) is declared but not so paid or made, the Conversion Rate Price shall again be adjusted to the Conversion Rate Price which would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock Ordinary Shares shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock Ordinary Shares shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 Guarantor shall issue rights or warrants (other than any rights or warrants referred to in Section 9.4(d)) to all holders of its outstanding shares of Common Stock Ordinary Shares entitling them (for a period of not more than 60 days) 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 conversion price per share) less than the Current Market Price (as defined in Section 9.4(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 Ordinary Shares outstanding on at the close of business on the Record Date Date, plus the total number of additional shares of Common Stock Ordinary Shares so offered for subscription or purchase (or into which the convertible securities so offered are convertible), ; and
(2) the denominator of which shall be the number of shares of Common Stock Ordinary Shares outstanding at on the close of business on the Record Date 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 conversion price of the convertible securities so offered) would purchase at such Current Market Price. 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 Ordinary Shares (or securities convertible into Common StockOrdinary Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock Ordinary Shares (or securities convertible into Common StockOrdinary Shares) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 Ordinary Shares at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common StockOrdinary Shares, 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 Guarantor shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of Ordinary Shares any class of capital stock of the Company Guarantor (other than any dividends or distributions to which paragraph 7(aSection 9.4(a) applies) or evidences of its indebtedness indebtedness, cash or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:in
Appears in 1 contract
Samples: First Supplemental Senior Indenture (Teva Pharmaceutical Industries LTD)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. For the purpose of this clause (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 16.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on the Record Date date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of stockholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 16.05(b), and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 16.05(a) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 16.05(d)) called the “excluded securities”"SECURITIES")), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Securities 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value (as so determined) of the portion of the securities 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 Noteholder 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) Securities such Holder holder would have received had such Holder holder converted such each Note (or portion thereof) immediately prior to such on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 16.05(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 paragraph 7(g) to on the extent possible, unless applicable Record Date. If 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution requiring an adjustment pursuant to this clause (d) consists of capital stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company, for purposes of making such adjustment, (i) the Current Market Price shall be determined as of the date (the "EX-DIVIDEND DATE") on which this paragraph 7(d"ex-dividend trading" commences for such distribution on the NASDAQ National Market 63 or such other national or regional exchange or market on which such securities are then listed or quoted, based on the average of the Closing Sale Prices of the Common Stock for the ten (10) is applicable that also includes shares Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date and (ii) the Fair Market Value of Common Stock, a subdivision such dividend or combination distribution shall equal the number of securities distributed in respect of each share of Common Stock to which paragraph 7(bmultiplied by the average of the closing sale prices of those securities distributed for the ten (10) applies, or rights Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock the Company's capital stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events ("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, shall be deemed not to have been distributed for purposes of this Section 16.05 (and no adjustment to the Conversion Rate under this Section 16.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such subdivision rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 16.05(d). If any such right or combination 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 which paragraphs 7(a)purchase different securities, 7(b) and7(c) applyevidences of indebtedness or other assets, respectively 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 Conversion Rate increase required by this paragraph 7(dof 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 the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to such dividend or distribution shall then be the Conversion Rate under this Section 16.05 was made), immediately followed by
(21) a dividend or distribution in the case of such shares of Common Stock, such subdivision or combination or any such rights or warrants (and that shall all have been redeemed or repurchased without exercise by any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such datethereof, the Conversion Rate shall be increased so that readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by case may be, as though it were a fraction:
(i) The numerator of which shall be cash distribution, equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 per share redemption or repurchase price received by a holder or holders of Common Stock outstanding on the Record Date. In the event that with respect to such dividend rights or distribution is not so paid warrants (assuming such holder had retained such rights or madewarrants), the Conversion Rate shall again be adjusted made to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays all holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to as of the extent that the cash date of such redemption or repurchase, and fair market value of any other consideration included (2) in the payment per share case of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders such rights or exchanges may be made pursuant to such tender offer warrants that shall have expired or exchange offer (the “Expiration Time”), then, and in each such casebeen terminated without exercise by any holders thereof, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the sum of (x) the fair market value (determined readjusted 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer rights and warrants had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)issued.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (Celgene Corp /De/)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of shareholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. For the purpose of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 15.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysshareholders entitled to receive such rights or warrants) 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 on average of the Record Date fixed Closing Sale Prices of the Common Stock for the determination of stockholders entitled to receive 10 Trading Days immediately preceding the date such rights or warrantsdistribution is first publicly announced by the Company, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of shareholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date shareholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of shareholders entitled to receive such rights or warrants plus the number of shares which that 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 a price equal to the average of the Closing Sale Prices of the Common Stock for the 10 Trading Days immediately preceding the date such Current Market Price. Such distribution is first publicly announced by the Company, such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date date fixed for determination of stockholders shareholders 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such date fixed for the determination of stockholders shareholders 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 a price less than the average of the Closing Sale Prices of the Common Stock for the 10 Trading Days immediately preceding the date such Current Market Pricedistribution is first publicly announced by the Company, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 15.05(b), and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 15.05(a) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 15.05(d) called the “excluded securities”"Securities")), then, in each such case, subject case (unless the Company elects to reserve such Securities for distribution to the second succeeding paragraph Noteholders upon the conversion of this paragraph 7(d)the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date for such distribution of the Securities) the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Securities 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However; provided that, in the event that if the then fair market value Fair Market Value (as so determined) of the portion of the securities 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 Noteholder 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) Securities such Holder holder would have received had such Holder holder converted such each Note (or portion thereof) immediately prior to such on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 15.05(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 paragraph 7(g) to on 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 . Notwithstanding the meaning of paragraph 7(a)foregoing, (y) “if the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 Securities distributed by the Company shall, by dividend or otherwise, distribute to all holders of its Common StockStock consist of capital stock of, cash (excluding any cash that is distributed as part of or similar equity interests in, a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of Subsidiary or other business on such dateunit, the Conversion Rate shall be increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in with respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time distribution by a fraction:,
(1i) the numerator of which shall be the sum of (xA) the fair market value (determined as aforesaid) average 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 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 Expiration Time and the Closing Sale Price Prices of the Common Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day next succeeding after the Expiration Time, and
Ex-Dividend Time plus (2B) the denominator Fair Market Value of which shall be the number securities distributed in respect of shares each share of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate for which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:Section 15.05
Appears in 1 contract
Samples: Indenture (Headwaters Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a1) In case the Company shall hereafter shall, at any time or from time to time, (i) pay a dividend or make a distribution in shares of its Common Stock to all holders of the Common Stock, (ii) combine its outstanding shares of Common Stock in into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1iii) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the subdivide its outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock or (commonly referred iv) make a distribution in shares of Common Stock to as a “forward split”)holders of Common Stock, then the Conversion Rate in effect at the opening of business on the day following the day upon which immediately before such subdivision becomes effective action shall be proportionately increasedadjusted so that the Holders, upon conversion of Notes into Common Stock immediately following such event, shall be entitled to receive the kind and amount of shares of Capital Stock of the Company which they would have owned or been entitled to receive upon or by reason of such event if the Notes had been converted immediately before the record date (or, if there is no record date, the effective date) for such event. An adjustment made pursuant to this Section 12.03(1) shall become effective retroactively immediately after the record date in the case outstanding of a dividend or distribution and shall become effective retroactively immediately after the effective date in the case of a subdivision or combination. For the purposes of this Section 12.03(1), each Holder shall be deemed to have failed to exercise any right to elect the kind or amount of securities receivable upon the payment of any such dividend, subdivision, combination or distribution (provided that if the kind or amount of securities receivable upon such dividend, subdivision, combination or distribution is not the same for each non-electing share, then the kind and amount of securities or other property receivable upon such dividend, subdivision, combination or distribution for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares).
(2) In case the Company shall, at any time or from time to time, issue rights, options or warrants to all holders of shares of its Common Stock entitling them to subscribe for or purchase shares of Common Stock shall be combined (or securities convertible into shares of Common Stock) at a smaller price per share less than the Current Market Price of the Common Stock at such record date (treating the price per share of the securities convertible into Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into Common Stock divided by (y) the number of shares of Common Stock (commonly referred to as a “reverse split”initially underlying such convertible security), the Conversion Rate shall be adjusted so that it shall equal the rate determined by dividing the Conversion Rate in effect at immediately prior to the opening date of business on the day following the day upon which issuance of such combination becomes effective shall be reducedrights, in each such case, by multiplying such Conversion Rate options or warrants by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to on the date of issuance of such subdivision rights, options or combination warrants plus the number of shares or securities which the aggregate offering price of the total number of shares or securities so offered for subscription or purchase (or the aggregate purchase price of the convertible securities so offered plus the aggregate amount of any additional consideration initially payable upon conversion of such securities into Common Stock) would purchase at such Current Market Price of the Common Stock, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business on the date after of issuance of such Record Date by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date rights, options or warrants 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 initially convertible), and
(2) the denominator 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. Such adjustment shall become effective retroactively immediately after the opening of business on record date for the day following the Record Date fixed for determination of stockholders shareholders 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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.
(d3) In case the Company shall, by dividend at any time or otherwisefrom time to time, distribute to all holders of shares of its Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing entity and the Common Stock is not changed or exchanged) cash, evidences of its indebtedness, securities or assets (excluding (i) dividends payable in shares of any class of capital stock Common Stock for which adjustment is made under Section 12.03(1), (ii) rights, options or warrants to subscribe for or purchase securities of the Company for which adjustment is made under Section 12.03(2), (other than any iii) dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash and (iv) distributions referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”Section 12.03(4)), then, then in each such case, subject to the second succeeding paragraph of this paragraph 7(d), case the Conversion Rate shall be adjusted so that it shall equal the same shall be equal to the price rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect date fixed for determination of holders of shares of Common Stock entitled to receive such distribution by a fraction:
(1) The , the numerator of which shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price of the Common Stock on the date fixed for determination of holders of shares of Common Stock entitled to receive such date, distribution less the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and set forth described in a Board ResolutionResolution filed with the Trustee) on Such date of the portion of the cash or assets or evidences of indebtedness or securities or other assets so distributed (other than excluded securities) or of such subscription rights or warrants 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator of which shall be equal to the such 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration TimeStock; provided, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event however, that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made with respect to any distribution of rights to purchase securities of the Company if a Holder would otherwise be entitled to receive such rights upon conversion at any time of the Notes into Common Stock unless such rights are subsequently redeemed by the Company, in which case such redemption shall be treated for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, Section as a dividend on the following terms Common Stock. Such adjustment shall have become effective retroactively immediately after the meanings indicated:record date for the determination of shareholders
Appears in 1 contract
Samples: Indenture (GPPD Inc)
Adjustment of Conversion Rate. The 3.5.1 If and whenever at any time and from time to time the Corporation shall: (i) subdivide, redivide or change its then outstanding Common Shares into a greater number of Common Shares; (ii) reduce, combine or consolidate or change its then outstanding Common Shares into a lesser number of Common Shares; or (iii) issue Common Shares (or securities exchangeable or convertible into Common Shares) to the holders of all or substantially all of its then outstanding Common Shares by way of stock dividend or other distribution (other than a stock dividend paid in the ordinary course) (any of such events being herein called a "Common Share Reorganization"), the Conversion Rate shall be subject to adjustments, calculated by adjusted effective immediately after the Company, from time to time as follows:
(a) In case record date at which the Company shall hereafter pay a dividend or make a distribution to all holders of Common Shares are determined for the outstanding purpose of the Common Stock in shares of Common Stock, Share Reorganization by multiplying the Conversion Rate in effect at on such record date by the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fractionquotient obtained when:
(1A) the numerator number of which Common Shares outstanding after the completion of such Common Share Reorganization (but before giving effect to the issue of any Common Shares issued after such record date otherwise than as part of such Common Share Reorganization) including, in the case where securities exchangeable or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, is divided by
(B) the number of Common Shares outstanding on such record date before giving effect to the Common Share Reorganization.
3.5.2 If and whenever at any time the Corporation shall fix the record date for the issuance of rights, options or warrants to the holders of all or substantially all of its outstanding Common Shares entitling them for a period expiring no more than 45 days after such record date to subscribe for or to purchase Common Shares (or securities of the Corporation convertible into Common Shares) at a price per Common Share (or having a conversion price per Common Share) of less than 95% of the Current Market Price of a Common Share on such record date (any such event being herein referred to as a "Rights Offering"), then the Conversion Rate then in effect shall be adjusted immediately after such record date by multiplying the Conversion Rate in effect on such record date by the quotient obtained when:
(A) the sum of the number of shares Common Shares outstanding on such record date and the number of additional Common Shares offered for subscription or purchase under the Rights Offering (or the number of Common Stock Shares into which the securities so offered are convertible) is divided by
(B) the sum of the number of Common Shares outstanding at on such record date and a number determined by dividing the close aggregate price of business on the Record Date fixed for such determination and the total number of shares constituting additional Common Shares offered for subscription or purchase under the Rights Offering (or the aggregate conversion price of the convertible securities so offered) by the Current Market Price of a Common Shares on such dividend record date. Any Common Shares owned by or other distribution, and
(2) The denominator held for the account of which the Corporation shall be deemed not to be outstanding for the sum purpose of any such number computation. If such rights, options or warrants are not so issued or if, at the date of shares. Such increase expiry of the rights, options or warrants subject to the Rights Offering, less than all the rights, options or warrants have been exercised, then the Conversion Rate shall become be readjusted effective immediately after the opening date of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, expiry to the Conversion Rate shall again be adjusted which would have been in effect if such record date had not been fixed or to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following date of expiry if the day upon which such subdivision becomes effective shall be proportionately increasedonly rights, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision options or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasewarrants issued had been those that were exercised, 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.
3.5.3 If and whenever at any time the Corporation shall fix a record date for the making of a distribution (cincluding a distribution by way of stock dividend) In case to the Company shall issue rights or warrants to all holders of all or substantially all its outstanding Common Shares of: (i) shares of the Corporation of any class other than Common Stock entitling them Shares (for a period of not more than 60 days) to subscribe for or purchase and 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants Shares referred to in paragraph 7(csubclause 3.5.1); (ii) and rights, options or warrants (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”)excluding a Rights Offering, thenrights, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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 options or warrants exercisable within 45 days of the portion of the securities or other assets so distributed (other than excluded securities) applicable to one share of record date having a conversion price per Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date). Such increase 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 Share equal to or greater than 95% of the then Current Market Price on the Record Date, Price); (iii) evidences of its indebtedness (excluding indebtedness convertible into Common Shares referred to 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 subclause 3.5.1); or (or any portion thereofiv) the amount of securities so distributed assets (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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(ai), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(bii), (iii) and (ziv) as “the date fixed for the determination of stockholders entitled to receive such rights or warrants”above, “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 paragraph 7(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 paragraph 7(a) and any increase or reduction dividends paid in the number of shares of ordinary course and a Common Stock resulting from Share Reorganization) (any 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 as part of a distribution event being herein referred to in paragraph 7(das a "Special Distribution") hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that effective immediately after the same shall equal record date at which the price holders of Common Shares are determined for the purposes of the Special Distribution by multiplying the Conversion Rate in effect immediately prior to close of business on such record date by the date of the Expiration Time by a fractionquotient obtained when:
(1A) the numerator product obtained when the number of Common Shares outstanding on the record date is multiplied by the Current Market Price of a Common Share on such date, is divided by
(B) the difference obtained when the amount by which the aggregate fair market value (as determined by the board of directors, which determination shall be conclusive) of the sum shares, rights, options, warrants, evidences of (x) indebtedness or assets, as the case may be, distributed in the Special Distribution exceeds the fair market value (as determined as aforesaidby the board of directors, which determination shall be conclusive) of the aggregate consideration payable to stockholders based on consideration, if any, received therefor by 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 acceptedCorporation, up to any such maximum, being referred to as the “Purchased Shares”) and (y) is subtracted from the product of obtained when the number of shares of Common Stock Shares outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time record date is multiplied by the Sale Current Market Price of a Common Share on such date, provided that no such adjustment shall be made if the result of such adjustment would be to decrease the Conversion Rate in effect immediately before such record date. Any Common Stock on Shares owned by or held for the Trading Day next succeeding account of the Expiration TimeCorporation shall be deemed not to be outstanding for the purpose of any such computation. Such increase (if any) adjustment shall become effective immediately prior to be made successively whenever such a record date is fixed. To the opening of business on the day following the Expiration Time. In the event extent that the Company such distribution is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescindednot so made, the Conversion Rate shall again be adjusted readjusted effective immediately to be the Conversion Rate which would then be in effect if based upon such tender offer shares or exchange offer rights, options or warrants or evidences of indebtedness or assets actually distributed.
3.5.4 If and whenever there is a capital reorganization of the Corporation not otherwise provided for in this clause 3.5 or a consolidation, merger, arrangement or amalgamation (statutory or otherwise) of the Corporation with or into another body corporate (any such event being called a "Capital Reorganization"), any Series A Holder who has not exercised its right of conversion prior to the record date for such Capital Reorganization shall be entitled to receive and shall accept, upon the exercise of such right at any time after the record date for such Capital Reorganization, in lieu of the number of Common Shares to which it was theretofore entitled upon conversion, the aggregate number of shares or other securities of the Corporation or of the corporation or body corporate resulting, surviving or continuing from the Capital Reorganization that such holder would have been entitled to receive as a result of such Capital Reorganization if, on the record date, it had been the registered holder of the number of Common Shares to which he was theretofore entitled upon conversion, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in clauses 3.5 and 3.6; provided that no such Capital Reorganization shall be carried into effect unless all necessary steps shall have been taken so that the Series A Holders shall thereafter be entitled to receive such number of shares or other securities of the Corporation or of the corporation or body corporate resulting, surviving or continuing from the Capital Reorganization.
3.5.5 In the case of any reclassification of, or other change in, the outstanding Common Shares other than a Common Share Reorganization or a Capital Reorganization, the right of conversion shall be adjusted immediately after the record date for such reclassification or other change so that Series A Holders shall be entitled to receive, upon the exercise of such right at any time after the record date of such reclassification or other change, such shares, securities or rights as they would have received had such Series A Shares been converted into Common Shares immediately prior to such record date subject to adjustment thereafter in accordance with provisions, the same as nearly may be possible, as those contained in clauses 3.5 and 3.
3.5.6 In the event that one or more preferential cumulative dividends are not been made. If paid on the application Series A Shares on the scheduled dividend payment date, whether or not such dividend or dividends were declared, and such dividend or dividends remain accrued but unpaid or there is a Deferred Dividend Amount in respect of this paragraph 7(f) such Series A Share, at the time that a Series A Holder exercises his right to any tender offer or exchange offer would result in an increase in convert such Share, the Conversion Rate, no adjustment Rate for each Series A Share so converted shall be made for adjusted effective on the base of conversion by multiplying (a) the Conversion Rate in effect immediately prior to the time of conversion by (b) the quotient obtained when (i) the sum of (A)$14.55 plus (B) the amount of accrued but unpaid dividends on such tender offer or exchange offer under this paragraph 7(f)Series A Share plus (C) the Deferred Dividend Amount in respect of such Series A Share, is divided by (ii) $14.55.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Convertible Preferred Shares Purchase Agreement (World Heart Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, issue Common Stock as a dividend or make a distribution distributions to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the total number of shares of Common Stock and OP Units outstanding at the close of business on the such Record Date fixed for such determination and the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2) The the denominator of which shall be the sum of such number of sharesshares of Common Stock and OP Units outstanding at the close of business on such Record Date. Such increase shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection (d)(7)(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, subdivide, reclassify or split its outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at immediately prior to the opening of business on the day following the day upon which such subdivision subdivision, reclassification or split becomes effective shall be proportionately increased, and and, conversely, in case the Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, combine or reclassify its outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at immediately prior to the opening of business on the day following the day upon which such combination or reclassification becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, as the case may be, to become effective immediately after prior to the opening of business on the day following the day upon which such subdivision subdivision, reclassification, split or combination becomes effective, so that the holder of any Series C Preferred Share thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Series C Preferred Share been converted immediately prior to the happening of such event adjusted as a result of such event.
(c) In case the Company shall Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, issue rights or warrants for a period expiring within 60 days to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Trading Day immediately preceding the date of the announcement by public notice of such issuance or distribution (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock and OP Units outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2) the denominator of which shall be the number of shares of Common Stock and OP Units outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market PriceClosing Sale Price of the Common Stock. Such adjustment increase shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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 DirectorsTrustees.
(dA) In case the Company Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Trust is the continuing corporation and the shares of any class Common Stock are not changed or exchanged), shares of its capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness or other assets, including securities, (including capital stock of any subsidiary of the Trust) but excluding (1i) dividends or distributions of Common Stock referred to in Section (d)(7)(a) of this Article SIXTH, (ii) any rights or warrants referred to in paragraph 7(c) and Section (3d)(7)(c), (iii) dividends and distributions paid exclusively in cash referred to in paragraph 7(eSection (d)(7)(e) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, combination, sale or conveyance to which Section (d)(8) applies, (such capital stock, evidence of its indebtedness, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection (d)(7)(d) called the “excluded securitiesDistributed Assets”), then, in each such case, subject to the second succeeding paragraph subparagraphs (D) and (E) of this paragraph 7(dSection (d)(7)(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The the numerator of which shall be the Current Market Price; and
(2) the denominator of which shall be such Current Market Price, and
(2) The denominator of which shall be less the Current Fair Market Price Value 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 Distributed 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 such Record Date)) on such date. Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(fB) In case If the Company Board of Trustees determines the Fair Market Value of any distribution for purposes of this Section (d)(7)(d) by reference to the actual or when issued trading market for any Distributed Assets comprising all or part of its Subsidiaries pays such distribution, 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 this Section (d)(7)(d) to the extent possible, unless the Board of Trustees determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the holders of the Series C Preferred Shares.
(C) In the event any such distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Trust’s subsidiaries (a “Spin Off”), the Fair Market Value of the securities to be distributed shall equal the average of the Closing Sale Prices of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of those securities after the effectiveness of the Spin Off, and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten initial public offering of the securities in the Spin Off occurs simultaneously with the Spin Oft Fair Market Value of the securities distributed in the Spin Off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Closing Sale Price for the Common Stock in respect of a tender offer on the same Trading Day.
(D) Rights or exchange offer, other than an odd-lot offer, warrants distributed by the Company or any Trust to all holders of its Subsidiaries for the outstanding shares of Common Stock entitling them to subscribe for or purchase equity securities of the extent that Trust (either initially or under certain circumstances), which rights or warrants, until the cash occurrence of a specified event or events (“Trigger Event”), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and fair market value (z) are also issued in respect of any other consideration included in the payment per share future issuances of shares of Common Stock exceeds shall be deemed not to have been distributed for purposes of this Section (d)(7)(d) (and no adjustment to the Sale Price per share Conversion Rate under this Section (d)(7)(d) shall be required) until the occurrence of Common Stock on the Trading Day next succeeding earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the last date on occurrence of which tenders such right or exchanges may be made pursuant warrant shall become exercisable to such tender offer purchase different Distributed Assets, or exchange offer (entitle the “Expiration Time”)holder to purchase a different number or amount of the foregoing Distributed Assets or to purchase any of the foregoing Distributed Assets at a different purchase price, then, and in then the occurrence of each such caseevent shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section (d)(7)(d):
(1) in the case of any such rights or warrants which shall all have been repurchased without exercise by any holders thereof, the Conversion Rate shall be adjusted so that readjusted upon such final repurchase to give effect to such distribution or Trigger Event, as the same case may be, as though it were a cash distribution, equal to the per share repurchase price received by a holder of shares 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 repurchase; and
(2) in the case of such rights or warrants which shall equal the price determined by multiplying have expired or been terminated without exercise, the Conversion Rate in effect immediately prior shall be readjusted as if such rights and warrants had never been issued.
(E) For purposes of this Section (d)(7)(d) and Section (d)(7)(a), Section (d)(7)(b) and Section (d)(7)(c), any dividend or distribution to close which this Section (d)(7)(d) is applicable that also includes (x) shares of business on the date Common Stock, (y) a subdivision, split or combination of the Expiration Time by a fractionshares of Common Stock to which Section (d)(7)(b) applies or (z) rights or warrants to subscribe for or purchase shares of Common Stock to which Section (d)(7)(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the numerator evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision, split or combination or such rights or warrants to which Section (d)(7)(a), Section (d)(7)(b) and Section (d)(7)(c) apply, respectively (and any Conversion Rate adjustment required by this Section (d)(7)(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, split or combination or such rights or warrants (and any further Conversion Rate increase required by Section (d)(7)(a), Section (d)(7)(b) and Section (d)(7)(c) with respect to such dividend or distribution shall then be made), except:
(i) the Record Date of such dividend or distribution shall be substituted as (i) “the sum 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 (xd)(7)(a), (ii) “the fair market value day upon which such subdivision or split becomes effective” or “the day upon which such combination becomes effective” (determined as aforesaidapplicable) within the meaning of Section (d)(7)(b), and (iii) as “the Record Date fixed for the determination of the aggregate consideration payable stockholders entitled to stockholders based on receive such rights or warrants” and such “Record Date” within the acceptance meaning of Section (up to d)(7)(c); and
(ii) any maximum specified reduction or increase 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 maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding resulting from such subdivision, split or combination (less any Purchased Sharesas applicable) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered disregarded in connection with such dividend or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)distribution.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Merger Agreement (Newkirk Master Lp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay (i) issue shares of its Common Stock as a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares of or (ii) subdivide, combine or reclassify its outstanding Common Stock, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at the close of business on the Record Date fixed for which it would have been entitled to (without giving effect to any arrangement pursuant to such determination and the total number of shares constituting such dividend or other dividend, distribution, and
(2subdivision, combination or reclassification not to issue fractional shares of Common Stock) The denominator of which shall be had such Security been converted immediately prior to the sum record date of such number event or the happening of sharessuch event. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate and shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to become effective immediately after the opening effective date in the case of business on the day following the day upon which such subdivision a subdivision, combination or combination becomes effectivereclassification.
(cb) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 a price per share less than the Current Market Price per share (as determined in accordance with subsection (f) of this Section 7.6) of Common Stock on the record date for such issuance (other than a distribution of rights pursuant to the Existing Rights Plan), the Conversion Rate in effect immediately prior to the close of business on the record date for the issuance shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on such record date by a fraction of which (A) the numerator shall be the sum of (I) the number of shares of Common Stock outstanding (excluding shares held in the treasury of the Company) at the close of business on such record date and (II) the aggregate number of shares (the “Underlying Shares”) of Common Stock underlying all such issued rights or warrants (whether by exercise, conversion, exchange or otherwise) and (B) the denominator shall be the sum of (I) number of shares of Common Stock outstanding (excluding shares held in the treasury of the Company) at the close of business on such record date and (II) the number of shares of Common Stock which the aggregate exercise, conversion, exchange or other price at which the Underlying Shares may be subscribed for or purchased pursuant to such rights or warrants would purchase at such Current Market Price, and in determining the aggregate offering price of such shares Price per share of Common Stock. Such increase shall become effective immediately prior to the opening of business on the Business Day following such record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(b). Notwithstanding the preceding sentence, there shall the Conversion Rate will be taken into account any consideration received for adjusted in accordance with this Section 7.6(b) to the extent that such rights or warrants, the value of such consideration if other than cash, warrants are not exercised prior to be determined by the Board of Directorstheir expiration.
(dc) In case the Company shall, by dividend or otherwise, shall distribute to all holders of its Common Stock any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or Company, evidences of its indebtedness or other non-Cash assets, including securities, but or rights or warrants (excluding (1i) any dividends, distributions and rights or warrants referred to in paragraph 7(csubsection (a) and or (3b) dividends and of this Section 7.6, (ii) distributions paid exclusively in cash referred to in paragraph 7(esubsection (e) of this Section 7.6 and (iii) the securities described distribution of rights pursuant to a shareholder rights plan (including the Existing Rights Plan) for which provision has been made in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called accordance with the “excluded securities”), then, in each such case, subject to the second succeeding third paragraph of this paragraph 7(dSection 7.6(c)), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such record date for the distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2A) The denominator of which the numerator shall be the Current Market Price per share (as defined in subsection (f) of this Section 7.6)) of the Common Stock on such date, record date and (B) the denominator shall be an amount equal to (I) such Current Market Price per share less (II) the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and set forth in a Board Resolutionwhich shall be evidenced by an Officers’ Certificate delivered to the Trustee) on Such date of the portion of the securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on at the Record Date). Such increase shall become effective immediately prior to the opening close of business on the day following the Record Date. Howeverrecord date); provided, however, that, in the event that the then fair market value (as so determined) of the portion of the securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Record Datesuch record date, then, 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 in addition to any portion thereofother consideration payable hereunder upon conversion) the amount of securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such Holder rights or warrants such holder would have received had such Holder holder converted each Security on such Note record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(c). Such adjustment (or portion thereofif any) shall be made successively whenever any such distribution is made and shall become effective immediately prior to after such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this paragraph 7(dSection 7.6(c) 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 applicable Current Market Price pursuant to paragraph 7(g) per share of Common Stock. The Company shall make adequate provisions such that, upon conversion of the Securities into Common Stock, to the extent possiblethat the Existing Rights Plan or any new shareholder rights plan (i.e. poison pill) hereafter implemented by the Company is in effect upon such conversion, unless the Board Holders of Directors Securities will receive, in a Board Resolution determines addition to the Common Stock and other consideration payable hereunder upon conversion, the rights described in good faith that determining such Existing Rights Plan or new rights plan (whether or not the fair market value during rights have separated from the Reference Period would not be Common Stock at the time of conversion), subject to the limitations set forth in such Existing Rights Plan or new rights plan. Any distribution of rights or warrants pursuant to such Existing Rights Plan or new rights plan complying with the requirements set forth in the best interests of the Holder. For purposes immediately preceding sentence of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or shall not constitute a distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants pursuant to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofthis Section 7.6(c), 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(ed) In case the Company shall, by shall dividend or otherwisedistribute (other than in connection with a liquidation, distribute dissolution or winding up of the Company) Cash (a “Cash Dividend”) to all holders of its Common Stock, cash Stock (excluding any cash that is distributed as part of other than a distribution referred requiring an adjustment to in paragraph 7(d) hereofthe Conversion Rate pursuant to Section 7.6(e), then and in each such case, immediately after the close of business on such date), the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator the record date for the determination of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 holders of Common Stock outstanding on the Record Date. In the event that entitled to such dividend or distribution is not so paid or made, the Conversion Rate by a fraction (A) whose numerator shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders average of the Common Stock in respect of a tender offer or exchange offer, other than an oddVolume-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment Weighted Average Prices per share of Common Stock exceeds (or, if such Volume-Weighted Average Prices are not available, the Closing Sale Prices) for the five consecutive Trading Days ending on the date immediately preceding the “ex” date (as defined in Section 7.6(f)) for such Cash Dividend or distribution (which average shall be appropriately adjusted by the Board of Directors, in its good faith determination (which determination shall be described in a resolution of the Board of Directors), to account for any adjustment, pursuant hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant hereto, an adjustment to the Conversion Rate where the “ex” date of such event occurs, at any time during such five consecutive Trading Days); and (B) whose denominator shall be an amount equal to (I) such average Volume-Weighted Average Price (or, if applicable, average Closing Sale Price) per share of Common Stock on less (II) the Trading Day next succeeding the last date on which tenders amount per share of Common Stock of such Cash Dividend or exchanges may be made pursuant distribution. An adjustment to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior pursuant to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if anythis Section 7.6(d) shall become effective immediately prior to the opening of business on the day Business Day immediately following such record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(d).
(e) In case the Company or any Subsidiary of the Company shall distribute Cash or other consideration in respect of a tender offer or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock where the sum of the aggregate amount of such Cash distributed and the aggregate fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth in a resolution of the Board of Directors), as of the Expiration Date (as defined below), of such other consideration distributed (such sum, the “Aggregate Amount”) expressed as an amount per share of Common Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration Time (as defined below) (such tendered or exchanged shares of Common Stock, the “Purchased Shares”) exceeds the Current Market Price per share (as determined in accordance with subsection (f) of this Section 7.6) of Common Stock on the last date (such last date, the “Expiration Date”) on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as the same may be amended through the Expiration Date), then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Expiration Date by a fraction (A) whose numerator is equal to the sum of (I) the Aggregate Amount and (II) the product of (a) the Current Market Price per share of Common Stock (as determined in accordance with subsection (f) of this Section 7.6) on the Expiration Date and (b) an amount equal to the number of shares of Common Stock outstanding as of the last time (the “Expiration Time”) at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (excluding Purchased Shares and shares held at such time in the treasury of the Company) and (B) whose denominator is equal to the product of (I) the number of shares of Common Stock outstanding as of the Expiration Time (including all Purchased Shares but excluding shares held at such time in the treasury of the Company) and (II) such Current Market Price per share of Common Stock on the Expiration Date. An increase, if any, to the Conversion Rate pursuant to this Section 7.6(e) shall become effective immediately prior to the opening of business on the Business Day following the Expiration TimeDate. In the event that the Company or a Subsidiary of the Company is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(fSection 7.6(e) to any tender offer or exchange offer would result in an increase a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(fSection 7.6(e).
(f) For the purpose of making a computation pursuant to this Section 7.6, the current market price (the “Current Market Price”) on a date of determination shall mean the average of the Closing Sale Prices per share of Common Stock for the five consecutive Trading Days ending on the date of determination; provided, however, that such Current Market Price shall be appropriately adjusted by the Board of Directors, in its good faith determination (which determination shall be described in a resolution of the Board of Directors), to account for any adjustment pursuant hereto (other than the adjustment requiring such computation) to the Conversion Rate that shall become effective, or any event (other than the event requiring such computation) requiring, pursuant hereto, an adjustment to the Conversion Rate where the “ex” date of such event occurs, at any time during such five consecutive Trading Days. For purposes hereof, the term “ex” date means (i) when used with respect to any dividend or distribution, the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such dividend or distribution; and (ii) when used with respect to any tender offer or exchange offer, the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained after the expiration time of such tender offer or exchange offer (as it may be amended or extended).
(g) For In any case in which this Section 7.6 shall require that an adjustment be made following a record date or Expiration Date, as the case may be, established for purposes of this paragraph 7Section 7.6, the Company may elect to defer (but only until five Business Days following terms the filing by the Company with the Trustee of the certificate described in Section 7.9) issuing to the Holder of any Security converted after such record date or Expiration Date the shares of Common Stock and other capital stock of the Company, evidences of indebtedness or other non-Cash assets or rights or warrants issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company, evidences of indebtedness or other non-Cash assets or rights or warrants issuable, or Cash payable, upon such conversion only on the basis of the Conversion Rate prior to adjustment; and, in lieu of the shares, evidences of indebtedness or other non-Cash assets or rights or warrants the issuance of which, or Cash the payment of which, is so deferred, the Company shall have issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the meanings indicated:Company of the right to receive such shares or Cash, as the case may be. If any distribution in respect of which an adjustment to the Conversion Rate is required to be made as of the record date or Expiration Date therefor is not thereafter made or paid by the Company for any reason, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such record date had not been fixed or such effective date or Expiration Date had not occurred.
Appears in 1 contract
Adjustment of Conversion Rate. The “Conversion Rate” is subject to adjustment as provided in this Section 8. The Conversion Rate shall be subject to adjustments, calculated by the CompanyIssuer, from time to time as follows:
(a) In case the Company Issuer shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date record date fixed for such determination and the total number of shares constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of sharesshares of Common Stock outstanding at the close of business on the record date fixed for such determination. Such increase shall become effective immediately after the opening of business on the day Business Day following the Record Daterecord date. If any dividend or distribution of the type described in this paragraph 7(aSection 8(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.. Exhibit A Form of Note 3
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in . In each such case, the Conversion Rate shall be adjusted by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to shall 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 Issuer shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into shares of Common Stock) at a price per share (or having a Conversion Price conversion price per share) less than the Current Market Price per share of Common Stock on the Record Date record date fixed for the determination of stockholders shareholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date record date by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date 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)) at such below Current Market Price, and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date 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. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after the opening of business on the day following the Record Date record date fixed for determination of stockholders shareholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date fixed for the determination of stockholders shareholders 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.. Exhibit A Form of Note 4
(d) In case the Company Issuer shall, by dividend or otherwise, distribute to all holders of its shares of Common Stock shares of any class of capital stock of the Company Issuer (other than any dividends or distributions to which paragraph 7(aSection 8(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding excluding, (1) any rights or warrants referred to in paragraph 7(cSection 8(c), (2) any dividends or distributions in connection with a reclassification, change of the Issuer’s shares of Common Stock, merger, consolidation, statutory share exchange, combination, sale or conveyance, and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(eSection 8(e) (the securities described in foregoing clauses (1)and 1), (2) and (3) hereinafter in this paragraph 7(dSection 8(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(dSection 8(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date record date with respect to such distribution by a fraction:
(1i) The the numerator of which shall be such Current Market PricePrice per share of Common Stock on the record date, and
(2ii) The the denominator of which shall be the Current Market Price per share of Common Stock on such date, less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolutionboard resolution) on Such such date of the portion of the securities securities, evidences of indebtedness 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 shares of Common Stock outstanding on the Record Daterecord date). Such increase shall become effective immediately prior to the opening of business on the day following the Record Daterecord date. However, in the event that the then fair market value (as so determined) of the portion of the securities securities, evidences of indebtedness or other assets 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 Daterecord date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Note Holder shall have the right to receive upon conversion of a Note the Notes (or any portion thereof) the amount of securities securities, evidences of indebtedness or other assets so distributed (other than excluded securities) that such Note Holder would have received had such Note Holder converted such Note Notes (or portion thereof) immediately prior to such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(dSection 8(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 paragraph 7(gSection 8(g) to the extent possible, unless the Board of Directors in a Board Resolution 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 Note Holder. Exhibit A Form of Note 5 For purposes of this paragraph 7(dSections 8(a) and paragraphs 7(a), 7(b) and 7(cthrough 8(d), any dividend or distribution to which this paragraph 7(dSection 8(d) is applicable that also includes shares share of Common Stock, a subdivision or combination of share of Common Stock to which paragraph 7(bSection 8(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into shares of Common Stock) to which paragraph 7(cSection 8(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 share of Common Stock, such subdivision or combination or such rights or warrants to which paragraphs 7(a), 7(bSections 8(a) and7(cthrough 8(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(dSection 8(d) with respect to such dividend or distribution shall then be made), immediately followed by:
(2) a dividend or distribution of such shares share of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(bSections 8(a) and 7(cthrough 8(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date record date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution”, “Record Date record date fixed for such determinations” and “Record Daterecord date” within the meaning of paragraph 7(aSection 8(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(bSection 8(b), and (z) as “the date fixed for the determination of stockholders shareholders entitled to receive such rights or warrants”, “the Record Date record date fixed for the determination of the stockholders shareholders entitled to receive such rights or warrants” and such “Record Daterecord date” within the meaning of paragraph 7(cSection 8(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 paragraph 7(aSection 8(a) and any increase or reduction 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 Issuer shall, by dividend or otherwise, distribute to all holders of its shares of Common Stock, cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof)cash, then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date record date by a fraction:
(i) The the numerator of which shall be equal to the Current Market Price on such Record Daterecord date, and
(ii) the denominator of which shall be equal to the Current Market Price on the Record Date 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 the Record Daterecord date. Exhibit A Form of Note 6 In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company Issuer or any of its Subsidiaries pays holders of the shares of Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company Issuer or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1i) the numerator of which shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders shareholders 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 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 Expiration Time and the Sale Price of the shares of Common Stock on the Trading Day next succeeding the Expiration Time, and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the shares of Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company Issuer is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Company Issuer is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7Section 8, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Convertible Note Facility Agreement (Eco-Stim Energy Solutions, Inc.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) adjusted so that the numerator Holder of which any Security thereafter surrendered for conversion shall be the sum of the entitled to receive that number of shares of Common Stock outstanding at which it would have received had such Security been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number event as well as such additional shares it would have received as a result of sharessuch event. Such increase adjustment shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, subdivide its outstanding shares of Common Stock shall be subdivided into a greater number of Common Stock or combine its outstanding shares of Common Stock into a smaller number of Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which it would have received had such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding Security been converted immediately prior to the happening of such subdivision or combinationevent as well as such additional shares as it would have received as a result of such event. Such reduction or increase, as the case may be, to adjustment shall become effective immediately after prior to the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall shall, at any time or from time to time while any of the Securities are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market PriceClosing Sale Price of the Common Stock. Such adjustment shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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.
(di) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of any class Common Stock are not changed or exchanged), shares of its capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness Indebtedness or other assets, including securities, but excluding (1i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in paragraph 7(c) and Section 12.3(c), (3iii) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:in
Appears in 1 contract
Samples: Indenture (Immunomedics Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of the Common Stock outstanding at the close of business on the Record Date date fixed for such determination determination; and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall reduction to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. For the purpose of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 10.03(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 (as defined below) on the Record Date date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price rate determined by multiplying dividing the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of stockholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator 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), and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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
(ii) the denominator of which shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate which that 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 by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 10.03(b) and excluding any dividend or distribution (3x) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 10.03(a) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 10.03(d) called the “excluded securities”"Distributed Assets"), then, in each such case, subject case (unless the Company elects to reserve such Distributed Assets for distribution to the second succeeding paragraph Holders upon the conversion of this paragraph 7(dthe Securities so that any such holder converting Securities will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Distributed Assets which such holder would have received if such holder had converted its Securities into Common Stock immediately prior to the Record Date (as defined in Section 10.03(h)(4) for such distribution of the Distributed Assets)), the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
, (1i) The the numerator of which shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price per share of the Common Stock on such date, Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Distributed 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the CompanyGuarantor, from time to time as follows:
(a) In case the Company Guarantor shall hereafter pay a dividend or make a distribution in Ordinary Shares to all holders of the outstanding Common Stock in shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1i) the numerator of which shall be the sum of the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the Record Date (as defined in Section 12.04(g)) fixed for such determination and plus the total number of shares constituting such dividend or other distribution, and
(2ii) The the denominator of which shall be the sum of such number of sharesOrdinary Shares outstanding at the close of business on such Record Date fixed for such determination. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 12.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock Ordinary Shares shall be subdivided or split into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock Ordinary Shares shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision subdivision, split or combination becomes effective.
(c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Senior Indenture (M-Systems Flash Disk Pioneers LTD)
Adjustment of Conversion Rate. 4.5.1 The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock Shares in shares of Common StockShares, the Conversion Rate in effect at immediately preceding the opening of business on the record date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying such the Conversion Rate in effect immediately preceding such record date by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock Shares outstanding at the close of business on the Record Date fixed for such determination and record date plus the total number of shares Shares constituting such dividend or other distribution, and
(2) The denominator distribution and of which the denominator shall be the sum of such number of sharesShares outstanding at the close of business on such record date. Such increase adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the opening purpose of business this Section 4.5.1(a), the number of Shares at any time outstanding shall not include Shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Shares held in the day following treasury of the Record DateCompany. If any dividend or distribution of the type described in this paragraph 7(a) clause is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) In case If the Company shall subdivide its outstanding shares of Common Stock shall be subdivided Shares into a greater number of shares Shares, or combine its outstanding Shares into a smaller number of Common Stock (commonly referred to as a “forward split”)Shares, the Conversion Rate in effect at the opening of business on the day following immediately preceding the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such or combination becomes effective shall be reducedbe, in each such casethe case of a subdivision of Shares, by multiplying such Conversion Rate by proportionately increased and, in the case of a fractioncombination of Shares, the numerator of which proportionately reduced. Such adjustment shall be the number of shares of Common Stock outstanding immediately after giving effect to made successively whenever any such subdivision or combination of the Shares occurs and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 date upon which such subdivision or combination becomes effective.
(c) In case If the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock Shares entitling them (for a period of not more than 60 daysexpiring within 45 days after such issuance) to subscribe for or purchase shares of Common Stock Shares (or securities convertible into Common StockShares) at a price per share Share (or having a Conversion Price conversion price per shareShare) less than the Current Market Price per Share on the Record Date fixed record date for the determination of stockholders shareholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the immediately preceding such record date after such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock Shares outstanding on at the close of business on the Record Date such record date plus the total number of additional shares of Common Stock so Shares offered for subscription or purchase (or into which the convertible securities so offered are convertible), and
(2) and of which the denominator of which shall be the number of shares of Common Stock Shares outstanding at the close of business on the Record Date such record date plus the number of shares Shares which the aggregate offering price of the total number of shares Shares so offered for subscription or purchase (or the aggregate Conversion Price conversion price of the convertible securities so offeredoffered for subscription or purchase, which shall be determined by multiplying the number of Shares issuable upon conversion of such convertible securities by the conversion price per Share pursuant to the terms of such convertible securities) would purchase at such the Current Market PricePrice per Share on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and 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 warrantsrecord date. To the extent that shares of Common Stock Shares (or securities convertible into Common StockShares) are not delivered pursuant to after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) Shares actually delivered. In the event that If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such the record date fixed for the determination of stockholders shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders shareholders to subscribe for or purchase shares of Common Stock Shares at a price less than such the Current Market Price, Price per Share and in determining the aggregate offering price of such shares the total number of Common StockShares so offered, there shall be taken into account any consideration received by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of DirectorsDirectors acting reasonably and equitably.
(d) In case If the Company shall, by dividend or otherwise, distribute shall make a distribution to all holders of its Common Stock Shares of shares of any class of in the capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) appliesShares) or evidences of its indebtedness or other assetsassets of the Company, including securities, securities (but excluding (1x) any issuance of rights or warrants referred for which any adjustment was made pursuant to in paragraph 7(c) Section 4.5.1(c), and (3y) dividends and distributions any dividend or distribution paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of for which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be adjustment was made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:to
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay (i) issue shares of its Common Stock as a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares of or (ii) subdivide, combine or reclassify its outstanding Common Stock, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at the close of business on the Record Date fixed for which it would have been entitled to (without giving effect to any arrangement pursuant to such determination and the total number of shares constituting such dividend or other dividend, distribution, and
(2subdivision, combination or reclassification not to issue fractional shares of Common Stock) The denominator of which shall be had such Security been converted immediately prior to the sum record date of such number event or the happening of sharessuch event. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate and shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to become effective immediately after the opening effective date in the case of business on the day following the day upon which such subdivision a subdivision, combination or combination becomes effectivereclassification.
(cb) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) 45 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 conversion price per share) less than the Current Market Price per share (as determined in accordance with subsection (f) of this Section 7.6) of Common Stock on the Record Date fixed record date for such issuance (other than a distribution of rights pursuant to the determination of stockholders entitled to receive such rights or warrantsExisting Rights Plan), the Conversion Rate in effect immediately prior to the close of business on the record date for the issuance shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at immediately prior to the opening close of business on the such record date after such Record Date by a fraction:
fraction of which (1A) the numerator of which shall be the sum of (I) the number of shares of Common Stock outstanding on (excluding shares held in the treasury of the Company) at the close of business on such record date and (II) the Record Date plus the total aggregate number of additional shares (the "Underlying Shares") of Common Stock underlying all such issued rights or warrants (whether by exer- cise, conversion, exchange or otherwise) and (B) the denominator shall be the sum of (I) number of shares of Common Stock so offered for subscription or purchase outstanding (or into which excluding shares held in the convertible securities so offered are convertible), and
treasury of the Company) at the close of business on such record date and (2II) the denominator 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 exercise, conversion, exchange or other price of at which the total number of shares so offered Underlying Shares may be subscribed for subscription or purchase (purchased pursuant to such rights or the aggregate Conversion Price of the convertible securities so offered) warrants would purchase at such Current Market PricePrice per share of Common Stock. Such adjustment increase shall become effective immediately after prior to the opening of business on the day Business Day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsrecord date. 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 In no event shall the Conversion Rate shall be readjusted decreased pursuant to this Section 7.6(b). Notwithstanding the preceding sentence, the Conversion Rate which would then will be adjusted in effect had accordance with this Section 7.6(b) to the adjustments made upon the issuance of such rights or warrants 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 extent that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted exercised prior to be the Conversion Rate 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 Directorstheir expiration.
(dc) In case the Company shall, by dividend or otherwise, shall distribute to all holders of its Common Stock any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or Company, evidences of its indebtedness or other non-Cash assets, including securities, but or rights or warrants (excluding (1i) any dividends, distributions and rights or warrants referred to in paragraph 7(csubsection (a) and or (3b) dividends and of this Section 7.6, (ii) distributions paid exclusively in cash referred to in paragraph 7(esubsection (e) of this Section 7.6 and (iii) the securities described distribution of rights pursuant to a shareholder rights plan (including the Existing Rights Plan) for which provision has been made in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called accordance with the “excluded securities”), then, in each such case, subject to the second succeeding third paragraph of this paragraph 7(dSection 7.6(c), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such record date for the distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2A) The denominator of which the numerator shall be the Current Market Price per share (as defined in subsection (f) of this Section 7.6)) of the Common Stock on such date, record date and (B) the denominator shall be an amount equal to (I) such Current Market Price per share less (II) the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and set forth in a Board Resolutionwhich shall be evidenced by an Officers' Certificate delivered to the Trustee) on Such date of the portion of the securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on at the Record Date). Such increase shall become effective immediately prior to the opening close of business on the day following the Record Date. Howeverrecord date); provided, however, that, in the event that the then fair market value (as so determined) of the portion of the securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Record Datesuch record date, then, 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 in addition to any portion thereofother consideration payable hereunder upon conversion) the amount of securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such Holder rights or warrants such holder would have received had such Holder holder converted each Security on such Note record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(c). Such adjustment (or portion thereofif any) shall be made successively whenever any such distribution is made and shall become effective immediately prior to after such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this paragraph 7(dSection 7.6(c) 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 applicable Current Market Price pursuant to paragraph 7(g) per share of Common Stock. The Company shall make adequate provisions such that, upon conversion of the Securities into Common Stock, to the extent possiblethat the Existing Rights Plan or any new shareholder rights plan (i.e. poison pill) hereafter implemented by the Company is in effect upon such conversion, unless the Board Holders of Directors Securities will receive, in a Board Resolution determines addition to the Common Stock and other consideration payable hereunder upon conversion, the rights described in good faith that determining such Existing Rights Plan or new rights plan (whether or not the fair market value during rights have separated from the Reference Period would not be Common Stock at the time of conversion), subject to the limitations set forth in such Existing Rights Plan or new rights plan. Any distribution of rights or warrants pursuant to such Existing Rights Plan or new rights plan complying with the requirements set forth in the best interests of the Holder. For purposes immediately preceding sentence of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or shall not constitute a distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants pursuant to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofthis Section 7.6(c), 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(ed) In case the Company shall, by shall dividend or otherwisedistribute (other than in connection with a liquidation, distribute dissolution or winding up of the Company) Cash in excess of $0.01375 per share in any fiscal quarter, or $.0275 per share in any fiscal quarter if the Company did not pay a dividend in the immediately preceding quarter, (in each case as adjusted for stock dividends or distributions or any subdivisions, combinations or reclassifications of our outstanding common stock) (an "Excess Dividend") to all holders of its Common Stock, cash Stock (excluding any cash that is distributed as part of other than a distribution referred requiring an adjustment to in paragraph 7(d) hereofthe Conversion Rate pursuant to Section 7.6(e), then and in each such case, immediately after the close of business on such date), the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator the record date for the determination of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 holders of Common Stock outstanding on the Record Date. In the event that entitled to such dividend or distribution is not so paid or made, the Conversion Rate by a fraction (A) whose numerator shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders average of the Common Stock in respect of a tender offer or exchange offer, other than an oddVolume-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment Weighted Average Prices per share of Common Stock exceeds (or, if such Volume-Weighted Average Prices are not available, the Closing Sale Prices) for the five consecutive Trading Days ending on the date immediately preceding the "ex" date (as defined in Section 7.6(f)) for such Excess Dividend or distribution (which average shall be appropriately adjusted by the Board of Directors, in its good faith determination (which determination shall be described in a resolution of the Board of Directors), to account for any adjustment, pursuant hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant hereto, an adjustment to the Conversion Rate where the "ex" date of such event occurs, at any time during such five consecutive Trading Days); and (B) whose denominator shall be an amount equal to (I) such average Volume-Weighted Average Price (or, if applicable, average Closing Sale Price) per share of Common Stock on less (II) the Trading Day next succeeding amount per share of Common Stock of such Excess Dividend or distribution; provided, however, that the last date on which tenders or exchanges may Conversion Rate shall not be made adjusted pursuant to such tender offer or exchange offer (this Section 7.6(d) to the “Expiration Time”), thenextent, and in each only to the extent, such caseadjustment would cause the Conversion Price to be less than par value of the Common Stock (which minimum amount shall be appropriately adjusted to reflect stock dividends on, and subdivisions, combinations or reclassifications of, Common Stock); provided further that, if the denominator of such fraction shall be equal to or less than zero, the Conversion Rate shall be instead adjusted so that the same shall Conversion Price is equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the sum of (x) the fair market par 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 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 Expiration Time and the Sale Price of the Common Stock on (as adjusted in accordance with the Trading Day next succeeding immediately preceding proviso). An adjustment to the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if anyConversion Rate pursuant to this Section 7.6(d) shall become effective immediately prior to the opening of business on the day Business Day immediately following such record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(d).
(e) In case the Company or any Subsidiary of the Company shall distribute Cash or other consideration in respect of a tender offer or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock where the sum of the aggregate amount of such Cash distributed and the aggregate fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth in a resolution of the Board of Directors), as of the Expiration Date (as defined below), of such other consideration distributed (such sum, the "Aggregate Amount") expressed as an amount per share of Common Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration Time (as defined below) (such tendered or exchanged shares of Common Stock, the "Purchased Shares") exceeds the Current Market Price per share (as determined in accordance with subsection (f) of this Section 7.6) of Common Stock on the last date (such last date, the "Expiration Date") on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as the same may be amended through the Expiration Date), then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Expiration Date by a fraction (A) whose numerator is equal to the sum of (I) the Aggregate Amount and (II) the product of (a) the Current Market Price per share of Common Stock (as determined in accordance with subsection (f) of this Section 7.6) on the Expiration Date and (b) an amount equal to the number of shares of Common Stock outstanding as of the last time (the "Expiration Time") at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (excluding Purchased Shares and shares held at such time in the treasury of the Company) and (B) whose denominator is equal to the product of (I) the number of shares of Common Stock outstanding as of the Expiration Time (including all Purchased Shares but excluding shares held at such time in the treasury of the Company) and (II) such Current Market Price per share of Common Stock on the Expiration Date. An increase, if any, to the Conversion Rate pursuant to this Section 7.6(e) shall become effective immediately prior to the opening of business on the Business Day following the Expiration TimeDate. In the event that the Company or a Subsidiary of the Company is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(fSection 7.6(e) to any tender offer or exchange offer would result in an increase a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(fSection 7.6(e).
(gf) For purposes the purpose of making a computation pursuant to this paragraph 7Section 7.6, the following terms current market price (the "Current Market Price") on a date of determination shall have mean the meanings indicated:average of the Closing Sale Prices per share of Common Stock for the five consecutive Trading Days ending on the date of determination; provided, however, that such Current Market Price shall be appropriately adjusted by the Board of Directors, in its good faith determination (which determination shall be described in a resolution of the Board of Directors), to account for any adjustment pursuant hereto (other than the adjustment requiring such computation) to the Conversion Rate that shall become effective, or any event (other than the event requiring such computation) requiring, pursuant hereto, an adjustment to the Conversion Rate where the "ex" date of such event occurs, at any time during such five consecutive Trading Days. For purposes hereof, the term "ex" date means (i) when used with respect to any dividend or distribution, the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such dividend or distribution; and (ii) when used with respect to any tender offer or exchange offer, the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained after the expiration time of such tender offer or exchange offer (as it may be amended or extended).
Appears in 1 contract
Samples: Indenture (C&d Technologies Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case If the Company shall hereafter pay issue shares of its Common Stock as a dividend or make a distribution to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at immediately after the opening of business on the date following the date fixed Record Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such the Conversion Rate in effect at the close of business on such Record Date by a fraction:
, (1i) the numerator of which shall be the sum total number of shares of Common Stock that will be outstanding immediately after such dividend or other distribution, and (ii) the denominator 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 the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase adjustment shall become effective immediately after the opening of business on the day following the Record DateDate for such dividend or other distribution. If any dividend or distribution of the type described in this paragraph 7(aSection 12.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case If the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case and, conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each . Any such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, as the case may be, to shall 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (Amkor Technology Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day Business Day following the Record Datedate fixed for such determination. For the purpose of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 16.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on the Record Date date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of stockholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day Business Day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the Business Day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the Business Day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 16.05(b), excluding any dividends or distributions in connection with the liquidation or winding up of the Company, and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 16.05(a) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:Section
Appears in 1 contract
Samples: Indenture (Williams Companies Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjustments from time to time as follows:
(ai) In case the Company Parent shall hereafter pay or make a dividend or make a other distribution to all holders on any class of Capital Stock of the outstanding Common Stock Parent payable in shares of Common Stockany class of common stock of the Parent, the Conversion Rate in effect at the opening of business on the date day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock all classes of common stock of the Parent outstanding at the close of business on the Record Date date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. If any In the event that such dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. For the purposes of this Section 7.4(d)(i), the number of shares of common stock of the Parent at any time outstanding shall not include shares held in the treasury of the Parent but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of common stock of the Parent. The Parent will not pay any dividend or make any distribution on shares of Capital Stock of the Parent held in the treasury of the Parent.
(bii) In Subject to the last sentence of paragraph (v) of this Section 7.4(d), in case the Parent shall after the date hereof, issue rights, options or warrants to all holders of any class of its common stock entitling them to subscribe for or purchase shares of common stock at a price per share less than the current market price per share (determined as provided in paragraph (vi) of this Section 7.4(d)) of the common stock on the date fixed for the determination of shareholders entitled to receive such rights, options or warrants, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of common stock which the aggregate of the offering price of the total number of shares of common stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of common stock outstanding at the close of business on the date fixed for such determination plus the number of additional shares of common stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (ii), the number of shares of common stock at any time outstanding shall not include shares held in the treasury of the Parent but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of common stock. The Parent will not issue any rights, options or warrants in respect of shares of common stock held in the treasury of the Parent. To the extent that shares of common stock are not delivered after the expiration or termination of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustment made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of common stock actually delivered.
(iii) Except as may otherwise be provided for in 7.4(d)(i), in case outstanding shares of Common Stock common stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)common stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and and, conversely, in case outstanding shares of Common Stock common stock shall each be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)common stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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.
(civ) In Subject to the last sentence of this paragraph (iv) and the last sentence of paragraph (v) of this Section 7.4(d), in case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock common stock evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness Capital Stock, or other assets, property (including securitiesSecurities, but excluding (1A) any rights rights, options or warrants referred to in paragraph 7(c(ii) and of this Section 7.4(d), (3B) dividends and distributions any dividend or distribution paid exclusively in cash cash, (C) any dividend or distribution referred to in paragraph 7(e(i) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(dSection 7.4(d) and (D) any merger or consolidation to which Section 7.4(k) applies), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect date fixed for the determination of shareholders entitled to receive such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (vi) of this Section 7.4(d)) of the common stock on the date fixed for such date, determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth described in a Board ResolutionResolution delivered to you) on Such date of the portion of the securities assets, shares or other assets evidences of indebtedness so distributed (other than excluded securities) applicable to one share of Common Stock (determined on common stock and the basis denominator shall be such current market price per share of the number of shares of the Common Stock outstanding on the Record Date). Such increase shall common stock, such adjustment to become effective immediately prior to the opening of business on the day following the Record Datedate fixed for the determination of shareholders entitled to receive such distribution. HoweverIf the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (iv) by reference to the actual or when issued trading market for any Securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (vi) of this Section 7.4(d). In lieu of making the foregoing adjustment, in the event that the then fair market value (as so determined) Parent shall distribute rights or warrants relating to Securities of the portion of the securities so distributed Parent (other than excluded securitiesthose referred to in paragraph (ii) applicable of this Section) ("RIGHTS") pro rata to one share holders of Common Stock is equal to or greater than common stock, the Current Market Price on the Record Date, in lieu Parent shall make proper provision so that you and each holder of the foregoing adjustment, adequate provision shall be made so that each Holder shall have Notes who converts the right to receive upon conversion of a Note Notes (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: (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 securities the Notes so distributed (other than excluded securities) such Holder would have received had such Holder converted such Note (or portion thereof) was convertible immediately prior to such Record Datethe Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(fv) In The reclassification of Common Stock into Securities other than common stock (other than any reclassification upon a consolidation or merger to which Section 7.4(k) applies) shall be deemed to involve (A) a distribution of such Securities other than common stock to all holders of common stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of shareholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (iv) of this Section 7.4(d)), and (B) a subdivision or combination, as the case may be, of the Company number of shares of common stock outstanding immediately prior to such reclassification into the number of shares of common stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or any "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (iii) of this Section 7.4(d)). Rights or warrants issued by the Parent to all holders of its Subsidiaries pays common stock entitling the holders thereof to subscribe for or purchase shares of the Common Stock common stock, which rights or warrants (x) are deemed to be transferred with such shares of common stock, (y) are not exercisable and (z) are also issued in respect of future issuances of common stock, in each case in clauses (x) through (z) until the occurrence of a tender offer specified event or exchange offerevents ("TRIGGER EVENT"), other than an odd-lot offer, by the Company or any shall for purposes of its Subsidiaries for shares of Common Stock this Section 7.4(d) not be deemed issued (and no adjustment to the extent that Conversion Rate shall be required) until the cash and fair market value occurrence of the earliest Trigger Event.
(vi) For the purpose of any other consideration included in computation under paragraphs (ii) or (iv) of this Section 7.4(d), the payment per share of Common Stock exceeds the Sale Price current market price per share of Common Stock on any date shall be calculated by the Parent and be deemed to be the average of the daily Closing Prices for the five consecutive Trading Day next succeeding Days selected by the last Parent commencing not more than 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date", when used with respect to any issuance or distribution, means the first date on which tenders the common stock trades regular way in the applicable Securities market or exchanges may be made pursuant on the applicable Securities exchange without the right to receive such tender offer issuance or exchange offer distribution.
(the “Expiration Time”), then, and vii) No adjustment in each such case, the Conversion Rate shall be adjusted so required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (vii)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (vii) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 7.4 shall be made to the same shall equal nearest cent or to the price determined by multiplying nearest one-hundredth of a share, as the case may be.
(viii) The Parent may make such increases in the Conversion Rate in effect immediately prior to close of business on Rate, for the date remaining term of the Expiration Time Notes or any shorter term, in addition to those required by a fraction:
paragraphs (1) the numerator of which shall be the sum of i), (x) the fair market value ii), (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 maximum, being referred to as the “Purchased Shares”iii) and (yiv) the product of the number this Section 7.4(d), as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock outstanding (less resulting from any Purchased Shares) at the Expiration Time and the Sale Price dividend or distribution of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator stock or issuance of which shall be the number of shares of Common Stock outstanding (including any tendered rights or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated warrants to purchase shares pursuant or subscribe for stock or from any event treated as such for income tax purposes. The Parent shall have the power to resolve any such tender offer ambiguity or exchange offer, but the Company is permanently prevented by applicable law from effecting correct any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be error in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f(viii) to any tender offer or exchange offer would result and its actions in an increase in the Conversion Rateso doing shall, no adjustment shall absent manifest error, be made for such tender offer or exchange offer under this paragraph 7(f)final and conclusive.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Note Purchase Agreement (Divine Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay (i) issue shares of its Common Stock as a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares of or (ii) subdivide, combine or reclassify its outstanding Common Stock, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at the close of business on the Record Date fixed for which it would have been entitled to (without giving effect to any arrangement pursuant to such determination and the total number of shares constituting such dividend or other dividend, distribution, and
(2subdivision, combination or reclassification not to issue fractional shares of Common Stock) The denominator of which shall be had such Security been converted immediately prior to the sum record date of such number event or the happening of sharessuch event. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate and shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to become effective immediately after the opening effective date in the case of business on the day following the day upon which such subdivision a subdivision, combination or combination becomes effectivereclassification.
(cb) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 a price per share less than the Current Market Price per share (as determined in accordance with subsection (f) of this Section 7.6) of Common Stock on the record date for such issuance (other than a distribution of rights pursuant to the Existing Rights Plan), the Conversion Rate in effect immediately prior to the close of business on the record date for the issuance shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on such record date by a fraction of which (A) the numerator shall be the sum of (I) the number of shares of Common Stock outstanding (excluding shares held in the treasury of the Company) at the close of business on such record date and (II) the aggregate number of shares (the "Underlying Shares") of Common Stock underlying all such issued rights or warrants (whether by exercise, conversion, exchange or otherwise) and (B) the denominator shall be the sum of (I) number of shares of Common Stock outstanding (excluding shares held in the treasury of the Company) at the close of business on such record date and (II) the number of shares of Common Stock which the aggregate exercise, conversion, exchange or other price at which the Underlying Shares may be subscribed for or purchased pursuant to such rights or warrants would purchase at such Current Market Price, and in determining the aggregate offering price of such shares Price per share of Common Stock. Such increase shall become effective immediately prior to the opening of business on the Business Day following such record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(b). Notwithstanding the preceding sentence, there shall the Conversion Rate will be taken into account any consideration received for adjusted in accordance with this Section 7.6(b) to the extent that such rights or warrants, the value of such consideration if other than cash, warrants are not exercised prior to be determined by the Board of Directorstheir expiration.
(dc) In case the Company shall, by dividend or otherwise, shall distribute to all holders of its Common Stock any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or Company, evidences of its indebtedness or other non-Cash assets, including securities, but or rights or warrants (excluding (1i) any dividends, distributions and rights or warrants referred to in paragraph 7(csubsection (a) and or (3b) dividends and of this Section 7.6, (ii) distributions paid exclusively in cash referred to in paragraph 7(esubsection (e) of this Section 7.6 and (iii) the securities described distribution of rights pursuant to a shareholder rights plan (including the Existing Rights Plan) for which provision has been made in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called accordance with the “excluded securities”), then, in each such case, subject to the second succeeding third paragraph of this paragraph 7(dSection 7.6(c)), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such record date for the distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2A) The denominator of which the numerator shall be the Current Market Price per share (as defined in subsection (f) of this Section 7.6)) of the Common Stock on such date, record date and (B) the denominator shall be an amount equal to (I) such Current Market Price per share less (II) the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and set forth in a Board Resolutionwhich shall be evidenced by an Officers' Certificate delivered to the Trustee) on Such date of the portion of the securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on at the Record Date). Such increase shall become effective immediately prior to the opening close of business on the day following the Record Date. Howeverrecord date); provided, however, that, in the event that the then fair market value (as so determined) of the portion of the securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Record Datesuch record date, then, 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 in addition to any portion thereofother consideration payable hereunder upon conversion) the amount of securities capital stock, evidences of indebtedness or other non-Cash assets so distributed (other than excluded securities) or of such Holder rights or warrants such holder would have received had such Holder holder converted each Security on such Note record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(c). Such adjustment (or portion thereofif any) shall be made successively whenever any such distribution is made and shall become effective immediately prior to after such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this paragraph 7(dSection 7.6(c) 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 applicable Current Market Price pursuant to paragraph 7(g) per share of Common Stock. The Company shall make adequate provisions such that, upon conversion of the Securities into Common Stock, to the extent possiblethat the Existing Rights Plan or any new shareholder rights plan (i.e. poison pill) hereafter implemented by the Company is in effect upon such conversion, unless the Board Holders of Directors Securities will receive, in a Board Resolution determines addition to the Common Stock and other consideration payable hereunder upon conversion, the rights described in good faith that determining such Existing Rights Plan or new rights plan (whether or not the fair market value during rights have separated from the Reference Period would not be Common Stock at the time of conversion), subject to the limitations set forth in such Existing Rights Plan or new rights plan. Any distribution of rights or warrants pursuant to such Existing Rights Plan or new rights plan complying with the requirements set forth in the best interests of the Holder. For purposes immediately preceding sentence of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or shall not constitute a distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants pursuant to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofthis Section 7.6(c), 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(ed) In case the Company shall, by shall dividend or otherwisedistribute (other than in connection with a liquidation, distribute dissolution or winding up of the Company) Cash (a "Cash Dividend") to all holders of its Common Stock, cash Stock (excluding any cash that is distributed as part of other than a distribution referred requiring an adjustment to in paragraph 7(d) hereofthe Conversion Rate pursuant to Section 7.6(e), then and in each such case, immediately after the close of business on such date), the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator the record date for the determination of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 holders of Common Stock outstanding on the Record Date. In the event that entitled to such dividend or distribution is not so paid or made, the Conversion Rate by a fraction (A) whose numerator shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders average of the Common Stock in respect of a tender offer or exchange offer, other than an oddVolume-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment Weighted Average Prices per share of Common Stock exceeds (or, if such Volume-Weighted Average Prices are not available, the Closing Sale Prices) for the five consecutive Trading Days ending on the date immediately preceding the "ex" date (as defined in Section 7.6(f)) for such Cash Dividend or distribution (which average shall be appropriately adjusted by the Board of Directors, in its good faith determination (which determination shall be described in a resolution of the Board of Directors), to account for any adjustment, pursuant hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant hereto, an adjustment to the Conversion Rate where the "ex" date of such event occurs, at any time during such five consecutive Trading Days); and (B) whose denominator shall be an amount equal to (I) such average Volume-Weighted Average Price (or, if applicable, average Closing Sale Price) per share of Common Stock on less (II) the Trading Day next succeeding the last date on which tenders amount per share of Common Stock of such Cash Dividend or exchanges may be made pursuant distribution. An adjustment to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior pursuant to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if anythis Section 7.6(d) shall become effective immediately prior to the opening of business on the day Business Day immediately following such record date. In no event shall the Conversion Rate be decreased pursuant to this Section 7.6(d).
(e) In case the Company or any Subsidiary of the Company shall distribute Cash or other consideration in respect of a tender offer or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock where the sum of the aggregate amount of such Cash distributed and the aggregate fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth in a resolution of the Board of Directors), as of the Expiration Date (as defined below), of such other consideration distributed (such sum, the "Aggregate Amount") expressed as an amount per share of Common Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration Time (as defined below) (such tendered or exchanged shares of Common Stock, the "Purchased Shares") exceeds the Current Market Price per share (as determined in accordance with subsection (f) of this Section 7.6) of Common Stock on the last date (such last date, the "Expiration Date") on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as the same may be amended through the Expiration Date), then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Expiration Date by a fraction (A) whose numerator is equal to the sum of (I) the Aggregate Amount and (II) the product of (a) the Current Market Price per share of Common Stock (as determined in accordance with subsection (f) of this Section 7.6) on the Expiration Date and (b) an amount equal to the number of shares of Common Stock outstanding as of the last time (the "Expiration Time") at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (excluding Purchased Shares and shares held at such time in the treasury of the Company) and (B) whose denominator is equal to the product of (I) the number of shares of Common Stock outstanding as of the Expiration Time (including all Purchased Shares but excluding shares held at such time in the treasury of the Company) and (II) such Current Market Price per share of Common Stock on the Expiration Date. An increase, if any, to the Conversion Rate pursuant to this Section 7.6(e) shall become effective immediately prior to the opening of business on the Business Day following the Expiration TimeDate. In the event that the Company or a Subsidiary of the Company is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(fSection 7.6(e) to any tender offer or exchange offer would result in an increase a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(fSection 7.6(e).
(gf) For purposes the purpose of making a computation pursuant to this paragraph 7Section 7.6, the following terms current market price (the "Current Market Price") on a date of determination shall have mean the meanings indicated:average of the Closing Sale Prices per share of Common Stock for the five consecutive Trading Days ending on the date of determination; provided, however, that such Current Market Price shall be appropriately adjusted by the Board of Directors, in its good faith determination (which determination shall be described in a resolution of the Board of Directors), to account for any adjustment pursuant hereto (other than the adjustment requiring such computation) to the Conversion Rate that shall become effective, or any event (other than the event requiring such computation) requiring, pursuant hereto, an adjustment to the Conversion Rate where the "ex" date of such event occurs, at any time during such five consecutive Trading Days. For purposes hereof, the term "ex" date means (i) when used with respect to any dividend or distribution, the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such dividend or distribution; and (ii) when used with respect to any tender offer or exchange offer, the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained after the expiration time of such tender offer or exchange offer (as it may be amended or extended).
Appears in 1 contract
Samples: Indenture (C&d Technologies Inc)
Adjustment of Conversion Rate. The number of shares of Common Stock into which each Security shall be convertible (herein called the “Conversion Rate Rate”) shall be subject to adjustments, calculated by the Company, adjustment from time to time as follows:
(a) In case the Company shall hereafter (1) pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock to holders of Common Stock, the Conversion Rate (2) make a distribution in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close to holders of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distributionCommon Stock, and
(23) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case subdivide the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock or (commonly referred to as a “forward split”), 4) combine the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which immediately prior to such combination becomes effective action shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, adjusted so that the numerator Holder of which any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock outstanding which he would have owned immediately after giving effect to following such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding action had such Securities been converted immediately prior thereto. An adjustment made pursuant to such subdivision or combination. Such reduction or increase, as the case may be, to this subsection (a) shall become effective immediately after the opening record date in the case of business on a dividend or distribution and shall become effective immediately after the day following effective date in the day upon which such case of a subdivision or combination becomes effectivecombination.
(cb) In case the Company shall issue rights or warrants to substantially all holders of its outstanding shares of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 60 days45 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the current market price (as determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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.
subsection (d) In case below) of 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each on such case, subject to the second succeeding paragraph of this paragraph 7(d)record date, the Conversion Rate shall be adjusted so that the same shall be equal to the price number determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution record date by a fraction:
(1) The numerator fraction of which the numerator shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 date, plus the Record Date. In number of additional shares of Common Stock offered (or into which the event that such dividend or distribution is not convertible securities so paid or madeoffered are convertible), and of which the Conversion Rate denominator shall again be adjusted to be the Conversion Rate number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock which the aggregate offering price of the offered shares of the Common Stock (or the aggregate conversion price of the convertible securities so offered) would then be in effect if purchase at such dividend or distribution had not been declaredcurrent market price. Such adjustments shall become effective immediately after such record date.
(fc) In case the Company or any of its Subsidiaries pays shall distribute to all holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value shares of any class of stock other consideration included in the payment per share than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders rights or exchanges may be made pursuant warrants to such tender offer or exchange offer subscribe for securities (the “Expiration Time”other than those referred to in subsection (b) above), then, and then in each such case, case the Conversion Rate shall be adjusted so that the same shall equal the price number determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time such distribution by a fraction:
(1) fraction of which the numerator of which shall be the sum current market price (determined as provided in subsection (d) below) of (x) the Common Stock on the record date mentioned below, and of which the denominator shall be such current market price of the Common Stock less the then fair market value (as determined as aforesaidby the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the aggregate consideration payable portion of the assets so distributed or of such subscription rights or warrants applicable to stockholders based on one share of Common Stock. Such adjustment shall become effective immediately after the acceptance (up record date for the determination of the holders of Common Stock entitled to any maximum specified receive such distribution. Notwithstanding the foregoing, in the terms 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 4.06, 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 tender offer or exchange offer) Rights shall be entitled to receive upon such conversion, in addition to the shares of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time 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 deemed so accepted, up of Common Stock equal to any the number of Conversion Shares is entitled at the time of such maximum, being referred conversion in accordance with the terms and provisions of and applicable to as the “Purchased Shares”) Rights; and (yii) if such conversion occurs after the product Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock outstanding 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.
(less d) The current market price per share of Common Stock on any Purchased Shares) at date shall be deemed to be the Expiration Time average of the daily closing prices for thirty consecutive trading days commencing forty-five trading days before the day in 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 Sale Price New York Stock Exchange, 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 sale price of the Common Stock, or in case no reported sale takes place, the average of the closing bid and asked prices, on NASDAQ or any comparable system, or if the Common Stock is not quoted on NASDAQ or any comparable system, the Trading Day next succeeding closing sale price or, in case no reported sale takes place, the Expiration Timeaverage of the closing bid and asked prices, andas furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose.
(2e) In any case in which this Section 4.06 shall require that an adjustment be made immediately following a record date, the denominator Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of which shall be the number certificate described in Section 4.10 below) issuing to the holder of any Security converted after such record date the shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price 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 Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening basis of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted prior to be adjustment; and, in lieu of the Conversion Rate shares the issuance of which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7is so deferred, the following terms Company shall have issue or cause its transfer agents to issue due bills or other appropriate evidence of the meanings indicated:right to receive such shares.
Appears in 1 contract
Samples: Indenture (Westmoreland Coal Co)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter (i) pay a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares 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 (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at which it would have owned had such Security been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number of sharesevent. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate and shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to become effective immediately after the opening effective date in the case of business on the day following the day upon which such subdivision or combination becomes effectivecombination.
(cb) In case the Company shall issue rights or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of commencing no earlier than the record date described below and expiring not more than 60 daysdays 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 conversion price per share) less than the Current Market Closing Price per share of Common Stock on the Record Date fixed for Business Day immediately prior to the determination date of stockholders entitled to receive announcement of such rights or warrantsissuance, the Conversion Rate in effect shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the date after immediately prior to such Record Date announcement by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement 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), and
(2) and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date date of announcement plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate Conversion Price conversion price of the convertible securities so offered) would purchase at such Current Market Price. 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 Rate which shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only determined by multiplying the number of shares of Common Stock (or issuable upon conversion of such convertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible into securities) would purchase at the Current Market Price per share of Common Stock) actually deliveredStock on the Business Day immediately preceding the date of announcement of such issuance. In the event that Such adjustment shall be made successively whenever any such rights or warrants are not so issued, and shall become effective on the Conversion Rate shall again be adjusted to be day following the Conversion Rate date of announcement of such issuance. If at the end of the period during which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had are exercisable not been fixed. In determining whether any all rights or warrants entitle shall have been exercised, the holders adjusted Conversion Rate shall be immediately readjusted to subscribe for or purchase what it would have been based upon the number of additional shares of Common Stock at less than such Current Market Price, and in determining actually issued (or the aggregate offering price number of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value Stock issuable upon conversion of such consideration if other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(dc) In case the Company shall, by dividend or otherwise, shall distribute to all or substantially all holders of its Common Stock any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or Common Stock), evidences of its indebtedness or other assets, non-cash assets (including securities, securities of any person other than the Company but excluding (1) any rights dividends or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash or (2) dividends or distributions referred to in paragraph 7(esubsection (a) (the securities described in foregoing clauses (1)and (2) hereinafter in of this paragraph 7(d) called the “excluded securities”Section 13.06), thenor 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 13.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to a Rights Plan (as defined below) or the detachment of such rights to the extent set forth in the second following paragraph), then in each such case, subject to the second succeeding paragraph of this paragraph 7(d), case the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying the current Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price per share of the Common Stock on the record date mentioned below and the denominator shall be the Current Market Price per share of the Common Stock on such date, record date less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and set forth in a Board Resolutionwhich shall be evidenced by an Officers’ Certificate delivered to the Trustee) on Such date of the portion of the securities capital stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Daterecord date). Such increase adjustment shall be made successively whenever any such distribution is made and shall become effective immediately prior after the record date for the determination of shareholders entitled to the opening of business on the day following the Record Datereceive such distribution. However, in In the event that the then fair market value (as so determined) of the portion of the securities Capital Stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Record Datesuch record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder holder of a Security shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of securities Capital Stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such Holder rights or warrants such holder would have received had such Holder holder converted each Security on such Note (or portion thereof) immediately prior to such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(d) Section 13.06 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 paragraph 7(g) of the Common Stock. In the event that the Company has in effect a preferred shares rights plan (“Rights Plan”), upon conversion of the Securities into Common Stock, to the extent possiblethat the Rights Plan is still in effect upon such conversion, unless the Board holders of Directors Securities will receive, in a Board Resolution determines 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 good faith the Rights Plan. If the Rights Plan provides that determining upon separation of rights under such plan from the fair market value during Company’s Common Stock that the Reference Period Holders would not be entitled to receive any such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Rate will be adjusted as provided in this Section 13.06(c) (with such separation deemed to be the distribution of such rights), subject to readjustment in the best interests event of the Holderexpiration, termination or redemption of the rights. For purposes Any distribution of this paragraph 7(d) and paragraphs 7(a)rights or warrants pursuant to a Rights Plan that would allow a Holder to receive upon conversion, 7(b) and 7(c), any dividend or distribution in addition to which this paragraph 7(d) is applicable that also includes shares of the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), shall not constitute a subdivision distribution of rights or combination warrants pursuant to this Article 13. Rights or warrants distributed by the Company to all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common the Company’s Capital Stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events (“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, shall be deemed not to have been distributed for purposes of this Section 13.06 (and no adjustment to the Conversion Rate under this Section 13.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such subdivision rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this clause (c) of Section 13.06. If any such right or combination 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 which paragraphs 7(a)purchase different securities, 7(b) and7(c) applyevidences of indebtedness or other assets, respectively 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 Conversion Rate increase required by this paragraph 7(dof 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 the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.06 was made, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such dividend distribution or distribution shall then be made)Trigger Event, immediately followed by
(2) as the case may be, as though it were a dividend cash distribution, equal to the per share redemption or distribution of such shares repurchase price received by a holder or holders of Common Stock, such subdivision or combination or Stock with respect to such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to assuming 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “the date fixed for the determination of stockholders entitled to receive holder had retained such rights or warrants”), “the Record Date fixed for the determination made to all holders of Common Stock as of the stockholders entitled to receive date of such redemption or repurchase, and (2) in the case of such rights or warrants” and such “Record Date” within warrants which shall have expired or been terminated without exercise by any holders thereof, the meaning of paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination Conversion Rate shall be disregarded in connection with readjusted as if such dividend or distributionrights and warrants had not been issued.
(ed) 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 (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such dateStock cash, the Conversion Rate shall be increased so that the same shall equal the price rate determined by multiplying such Conversion Rate in effect on the Business Day (the “Determination Date”) immediately preceding the day on which such Triggering Distribution is declared by the Company by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on the Determination Date, and the denominator shall be the Current Market Price per share of the Common Stock on the Determination Date less the aggregate amount of cash so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. It is expressly understood that a stock buyback, repurchase or similar transaction or program shall in no event be considered a Triggering Distribution for purposes of this clause (d) or (e) of Section 13.06.
(e) In case the Company or any of its Subsidiaries shall purchase any shares of the Company’s Common Stock by means of a tender offer, then, effective immediately prior to the opening of business on the day after 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”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record the Expiration Date by a fraction:
(i) The numerator fraction of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the sum of (x) the fair market value aggregate consideration (determined as aforesaidset forth below) of the aggregate consideration payable to stockholders of the Company 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 maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased SharesShares and excluding any shares held in the treasury of the Company) at immediately prior to the Expiration Time and the Sale Current Market Price per share of the Common Stock on the Trading Day next succeeding the Expiration Time(as determined in accordance with clause (f) of Section 13.06), and
(2) and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any tendered or exchanged sharesshares held in the treasury of the Company) at immediately prior to the Expiration Time multiplied by the Sale Current Market Price per share of the Common Stock on (as determined in accordance with clause (f) of Section 13.06). For purposes of this clause (e) of Section 13.06, the Trading Day next succeeding aggregate consideration in any such tender offer shall equal the Expiration Time. Such increase sum of the aggregate amount of cash consideration and the aggregate fair market value (if any) as determined by the Board of Directors, whose determination shall become effective immediately prior be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered to the opening Trustee) of business on the day following the Expiration Timeany other consideration payable in such tender offer. In the event that the Company is obligated to purchase shares pursuant to any such tender offer or exchange 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 Rate shall again be adjusted to be the Conversion Rate which would then be have been in effect if such tender offer or exchange offer had not been madebased upon the number of shares actually purchased. If the application of this paragraph 7(fclause (e) of Section 13.06 to any tender offer or exchange offer would result in an increase a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(fSection 13.06(e).
(g) . For purposes of this paragraph 7clause (e) of Section 13.06, the following terms shall have the meanings indicated:term
Appears in 1 contract
Samples: Indenture (Affymetrix Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1i) the numerator of which shall be the sum of the total number of shares of Common Stock outstanding on such Record Date and the total number of shares of Common Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the such Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of sharesDate. Such increase shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide or split its outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at immediately prior to the opening of business on the day following the day upon which such subdivision or split becomes effective shall be proportionately increased, and and, conversely, in case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, combine its outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at immediately prior to the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, as the case may be, to become effective immediately after prior to the opening of business on the day following the day upon which such subdivision subdivision, split or combination becomes effective, so that the Holder of any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Note been converted immediately prior to the happening of such event adjusted as a result of such event.
(c) In case the Company shall shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market PriceClosing Sale Price of the Common Stock. Such adjustment increase shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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.
(dA) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of any class Common Stock are not changed or exchanged), shares of its capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness Indebtedness or other assets, including securities, but excluding (1i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in paragraph 7(c) and Section 12.3(c), (3iii) dividends and distributions paid exclusively in cash referred to in paragraph 7(ethis Section 12.3(d) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 12.3(d) called the “excluded securitiesdistributed assets”), then, in each such case, subject to the second succeeding paragraph paragraphs (D) and (E) of this paragraph 7(dSection 12.3(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (CTS Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Issuer as follows:
(a) In case the Company Issuer shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 5.07(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 Issuer shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on as of the Record Date date immediately preceding the record date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of stockholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close record date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date record date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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 a price equal to the Current Market PricePrice as of the date immediately preceding the record date fixed for determination of stockholders entitled to receive such rights or warrants. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 a price less than such the Current Market PricePrice as of the date immediately preceding the record date fixed for determination of stockholders entitled to receive such rights or warrants, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Issuer for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) adjusted so that the numerator Holder of which any Security thereafter surrendered for conversion shall be the sum of the entitled to receive that number of shares of Common Stock outstanding at which it would have received had such Security been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number event as well as such additional shares it would have received as a result of sharessuch event. Such increase adjustment shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, subdivide its outstanding shares of Common Stock shall be subdivided into a greater number of Common Stock or combine its outstanding shares of Common Stock into a smaller number of Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which it would have received had such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding Security been converted immediately prior to the happening of such subdivision or combinationevent as well as such additional shares as it would have received as a result of such event. Such reduction or increase, as the case may be, to adjustment shall become effective immediately after prior to the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall shall, at any time or from time to time while any of the Securities are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market PriceClosing Sale Price of the Common Stock. Such adjustment shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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.
(dA) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of any class Common Stock are not changed or exchanged), shares of its capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness Indebtedness or other assets, including securities, but excluding (1i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in paragraph 7(c) and Section 12.3(c), (3iii) dividends and distributions paid exclusively in cash referred to in paragraph 7(eSection 12.3(e) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 12.3(d) called the “excluded securities”"DISTRIBUTED ASSETS"), then, in each such case, subject to the second succeeding paragraph paragraphs (D) and (E) of this paragraph 7(dSection 12.3(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1i) The the numerator of which shall be the Current Market Price; and
(ii) the denominator of which shall be such Current Market Price, and
(2) The denominator Price of which shall be the Current Market Price on such dateCommon Stock, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) Fair Market Value on Such such date of the portion of the securities or other distributed 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)) on such date. Such increase adjustment 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(fB) In case If the Company Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 12.3(d) by reference to the actual or when issued trading market for any distributed assets comprising all or part of its Subsidiaries pays holders of such distribution, it must in doing so consider the Common Stock prices in respect of a tender offer or exchange offer, other than an odd-lot offer, by such market over the Company or any of its Subsidiaries for shares of Common Stock same period (the "REFERENCE PERIOD") used in computing the Current Market Price pursuant to Section 12.3(g) to the extent possible, unless the Board of Directors determines in good faith that determining the cash and fair market value of any other consideration included Fair Market Value during the Reference Period would not be in the payment per share best interest of Common Stock exceeds the Sale Price per share Holders.
(C) In the event any such distribution consists of Common Stock on shares of capital stock of, or similar equity interests in, one or more of the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer Company's Subsidiaries (the “Expiration Time”a "SPIN-OFF"), then, and in each such case, the Conversion Rate shall Fair Market Value of the securities to be adjusted so that the same distributed shall equal the price determined by multiplying average of the Conversion Rate in effect immediately prior to close Closing Sale Prices of business such securities on the date principal securities market on which such securities are traded for the five consecutive Trading Days commencing on and including the sixth Trading Day of those securities after the effectiveness of the Expiration Time by a fraction:
(1) Spin-Off, and the numerator of which Current Market Price shall be measured for the sum of (x) same period. In the fair market value (determined as aforesaid) event, however, that an underwritten initial public offering of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified securities in the terms Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the tender offer or exchange offer) securities distributed in the Spin-Off shall mean the initial public offering price of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time securities and the Current Market Price shall mean the Closing Sale Price of for the Common Stock on the same Trading Day next succeeding the Expiration Time, andDay.
(2D) Rights or warrants distributed by the denominator Company to all holders of which shall be the number of its outstanding shares of Common Stock outstanding entitling them to subscribe for or purchase shares of Equity Interest (including any tendered either initially or exchanged sharesunder certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("TRIGGER EVENT"), (x) at the Expiration Time multiplied by the Sale Price are deemed to be transferred with such Common Stock, (y) are not exercisable and (z) are also issued in respect of the future issuances of Common Stock on the Trading Day next succeeding the Expiration Time. Such increase shall be deemed not to have been distributed for purposes of this Section 12.3(d) (if any) shall become effective immediately prior and no adjustment to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate under this Section 12.3(d) shall again be adjusted required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different distributed assets, evidences of indebtedness or other assets, or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:Section 12.3(d):
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate conversion rate applicable to any series of Securities shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders change the stock issuable upon conversion of the outstanding Common Stock in Securities of any series into the same or different number of new shares of Common Stockthe same or different class or classes, the Conversion Rate Holder, upon conversion, shall be entitled to receive, in effect at lieu of the opening of business on the date following the date fixed for the determination of stockholders Class C Stock which he would have been entitled to receive but for such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of change, the number of shares of Common Stock outstanding at the close of business on new stock equivalent to the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of new stock that would have been issued to him in exchange to such number of shares. Such increase shall become effective shares of Class C Stock which he would have been entitled to receive if the conversion privilege had been exercisable and exercised immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted prior to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredchange.
(b) In case at any time or from time to time the outstanding shares Company shall declare and pay on or in respect of Common the Class C Stock shall be subdivided into a greater number issuable upon conversion, any dividend of shares of Common Stock (commonly referred to as a “forward split”)stock of any class or classes, the Conversion Rate in effect at Holder, upon exercising the opening conversion privilege, after the date of business on record of the day following the day upon which holders of stock to whom such subdivision becomes effective stock dividend is payable, shall be proportionately increased, entitled to receive the shares of stock theretofore issuable upon conversion together with the dividend stock which would have been issuable if the conversion privilege had been exercisable and exercised immediately prior to the record date.
(c) The Company covenants and agrees that in case outstanding shares it shall consolidate or merge with, or shall sell its property as an entirety, or substantially as an entirety to any other corporation, proper provision will be made as part of Common Stock shall the terms of such consolidation, merger or sale, that the Holder of any Security of any series will thereafter be combined entitled to convert such Security into a smaller number the same kind and amount of shares securities and any other assets as may be issuable or distributable by the terms of Common Stock (commonly referred such consolidation, merger or sale with respect to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Class C Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 into which such subdivision or combination becomes effective.
(c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities Security is convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 time of such rights consolidation, merger or warrants the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 sale; provided that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase shall become effective immediately prior to the opening of business on the day following the Record Date. However, in the event that of any such consolidation, merger or sale, the then fair market value (as so determined) surviving corporation with which the Company consolidates, merges or to which it sells property shall succeed to all 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 Daterights provided for herein, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have including 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributionredemption.
(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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock Shares in shares of Common StockShares, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate Record Date by a fraction:
(1i) the numerator of which shall be the sum of the number of shares of Common Stock Shares outstanding at the close Close of business Business on the Record Date fixed for such determination and plus the total number of shares Common Shares constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such Common Shares outstanding at the Close of Business on the Record Date, such increase shall to become effective immediately after the opening of business on the day following the Record Date. For the purpose of this paragraph (a), the number of Common Shares at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Shares held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 1005(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares Company issues to all holders of Common Stock Shares rights or warrants entitling them to purchase Common Shares, for a period expiring within forty-five (45) days of the record date for such issuance, at a price per share that is less than the average of the Closing Sale Prices for the ten (10) consecutive Trading Days immediately preceding, but not including, the date such issuance is first publicly announced by the Company, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such rights or warrants by a fraction:
(i) the numerator of which shall be the number of Common Shares outstanding at the Close of Business on the Record Date plus the total number of additional Common Shares offered for subscription or purchase, and
(ii) the denominator of which shall be the sum of the number of Common Shares outstanding at the Close of Business on the Record Date plus the number of shares that the aggregate offering price of the total number of shares so offered would purchase at a price equal to the average of the Closing Sale Prices of the Common Shares for the ten (10) Trading Days immediately preceding the date such distribution is first publicly announced by the Company. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date. To the extent that Common Shares are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of Common Shares actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Record Date had not been fixed. In determining whether any rights or warrants entitle the shareholders to subscribe for or purchase Common Shares at a price less than the average of the Closing Sale Prices of the Common Share for the ten (10) Trading Days immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding Common Shares shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock Shares shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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, shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) appliesCommon Shares) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 1005(b), and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(e) Section 1006 (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 1005(d) called the “excluded securities”"DISTRIBUTED SECURITIES")), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), case the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Distributed Securities 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). Such increase shall Share, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However; provided, in the event that if the then fair market value Fair Market Value (as so determined) of the portion of the securities Distributed Securities so distributed (other than excluded securities) applicable to one share of Common Stock Share 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 be entitled to receive upon conversion of a Note (or any portion thereof) the amount of securities so distributed (other than excluded securities) Distributed Securities such Holder would have received had such Holder converted each Security on the Record Date; provided, further, that if such Note (or portion thereof) immediately Distributed Securities are so distributed, prior to the date that is five years plus one day after the later of the Issue Date and the last date on which Securities were issued pursuant to the Initial Purchasers' Option, such Record DateHolder shall only be entitled to receive, in addition to Common Shares to which such Holder is entitled to receive upon conversion, Prescribed Securities of a type specified by the Board of Directors and the Conversion Rate shall, if necessary, be adjusted so that the value of such Prescribed Securities is equivalent in value as of the date of such distribution (based on the average of the closing sale prices for such Prescribed Securities, if available) for the ten (10) Trading Day period beginning on the fifth Trading Day after such distribution, and if such closing sale prices are not available, as determined by the Board of Directors, to the consideration received by holders of Common shares pursuant to such distribution of Distributed Securities, provided that the Company may elect at the Company's sole option, to deliver such Distributed Securities instead of such Prescribed Securities. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 1005(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 paragraph 7(g) to on 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 . Notwithstanding the meaning of paragraph 7(a)foregoing, (y) “if the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 Distributed Securities distributed by the Company shall, by dividend or otherwise, distribute to all holders of its Common StockShares consist of capital stock of, cash (excluding any cash that is distributed as part or similar equity interests in, a Subsidiary or other business unit of a distribution referred to in paragraph 7(d) hereof)the Company, then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased adjusted so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to on the close of business on such Record Date with respect to such distribution by a fraction:,
(i) The the numerator of which shall be the sum of (A) the average of the Closing Sale Prices of the Common Shares for the ten (10) Trading Days commencing on and including the fifth Trading Day after the date on which "ex-dividend trading" of the Common Shares commences with respect to such Distributed Securities (the "EX-DIVIDEND DATE") plus (B) the Fair Market Value of the Distributed Securities distributed in respect of each Common Share for which this Section 1005(d) applies which shall equal to the Current Market number of Distributed Securities distributed in respect of each Common Share multiplied by the average of the Distributed Securities Closing Sale Price for the ten (10) Trading Days commencing on such Record and including the fifth Trading Day after the Ex-Dividend Date, ; and
(ii) the denominator 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 average of the cash distributed and (y) the number of shares of Common Stock outstanding on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders Closing Sale Prices of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by Shares for the Company or any of its Subsidiaries for shares of Common Stock to ten (10) Trading Days commencing on and including the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the fifth Trading Day next succeeding after the last date on which tenders or exchanges may be made pursuant Ex-Dividend Date, such adjustment to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)Record Date.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter (i) pay a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares 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 (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at which it would have owned had such Security been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number of sharesevent. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate and shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to become effective immediately after the opening effective date in the case of business on the day following the day upon which such subdivision or combination becomes effectivecombination.
(cb) In case the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of commencing no earlier than the record date described below and expiring not more than 60 daysdays 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 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) of this Section 4.6) on the Record Date fixed record date for the determination of stockholders shareholders entitled to receive such rights or warrants, no adjustment need be made to the Conversion Rate if the Holders of the Securities are to participate in such issuance of rights or warrants on a basis and with notice that the Board of Directors determines in good faith to be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in such issuance of rights and warrants; provided, that no Holder shall be required to convert such -------- Holder's Securities. In the event that such determination is not made by the Board of Directors, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the immediately prior to such record date after such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date such 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), and
(2) and of which the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate Conversion Price conversion price of the convertible securities so offered) would purchase at such Current Market Price. 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 Rate which shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible 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 (or securities convertible into as defined in subsection (e) of this Section 4.6) of Common Stock) actually deliveredStock on such record date. In the event that Such adjustment shall be made successively whenever any such rights or warrants are not so issued, and shall become effective immediately after such record date. If at the Conversion Rate shall again be adjusted to be end of the Conversion Rate period during which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had are exercisable not been fixed. In determining whether any all rights or warrants entitle shall have been exercised, the holders adjusted Conversion Rate shall be immediately readjusted to subscribe for or purchase what it would have been based upon the number of additional shares of Common Stock at less than such Current Market Price, and in determining actually issued (or the aggregate offering price number of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value Stock issuable upon conversion of such consideration if other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(dc) In case the Company shall, by dividend or otherwise, shall distribute to all or substantially all holders of its Common Stock any shares of any class of capital stock of the Company (other than any dividends or distributions of Common Stock on Common Stock to which paragraph 7(aSection 4.6(a) applies) or ), evidences of its indebtedness or other assets, assets (including securitiessecurities of any person other than the Company, but excluding (1all-cash distributions to which 4.6(d) applies or any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”4.6(b)), then, then in each such casecase (unless (i) the Company elects to reserve such shares of capital stock, subject evidences of indebtedness or other assets for distribution to the second succeeding paragraph Holders upon the conversion of this paragraph 7(dthe Securities so that any Holder converting Securities after the relevant record date will receive upon such conversion, in addition to the shares of Common Stock to which such Holder is entitled, the amount and kind of such shares of capital stock, evidences of indebtedness or other assets which such Holder would have received had such Holder converted its Securities immediately prior to the record date for the distribution of such shares of capital stock, evidences of indebtedness or other assets, or (ii) the Holders of the Securities are to participate in such distribution on a basis and with notice that the Board of Directors determines in good faith to be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in such distribution; provided, that no Holder shall be required to -------- convert such Holder's Securities), the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying the current Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price current market price per share (as defined in subsection (e) of this Section 4.6) of the Common Stock on such record date, and of which the denominator shall be the current market price per share (as defined in subsection (e) of 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 in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and set forth in a Board Resolutionwhich shall be evidenced by an Officers' Certificate delivered to the Trustee) on Such date of the portion of the securities capital stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Daterecord date). Such increase adjustment shall be made successively whenever any such distribution is made and shall become effective immediately prior after the record date for the determination of shareholders entitled to the opening of business on the day following the Record Datereceive such distribution. 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 Each 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 issued upon conversion of a Note Securities pursuant to this Article 4 shall be entitled to receive the appropriate number of Rights, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, in each case as provided by, and subject to the terms (or any portion including Section 22.2 thereof) of, the amount Rights Plan as in effect at the time of securities so distributed such conversion (other than excluded securities) whether or not such Holder would Rights have received had separated from the Common Stock at the time of such Holder converted such Note (or portion thereof) immediately prior to such Record Dateconversion). In the event that the Company implements any new stockholders' rights plan or amends, modifies or supplements the Rights Plan or any such dividend or distribution is not so paid or madenew stockholders' rights plan (the "New Rights Plan"), such New Rights Plan shall provide that upon a conversion of the Securities the Holders will receive, in addition to the Common Stock issuable upon such conversion, the Conversion Rate shall again be adjusted to be rights (whether or not such rights have separated from the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If Common Stock at the Board time of Directors determines the fair market value of any distribution for purposes of this paragraph 7(dconversion) by reference issuable pursuant to the actual or when issued trading market for any securities comprising all or part of New Rights Plan (it being agreed that the New Rights Plan may contain terms relating to 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 paragraph 7(g) obligation substantially to the extent possible, unless the Board effect of Directors those set forth 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 Section 22.2 of the HolderRights Plan). For purposes of this paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend Rights or distribution warrants distributed by the Company to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common Stock the Company's capital stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events ("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, shall be deemed not to have been distributed for purposes of this Section 4.6(c) (and no adjustment to the Conversion Rate under this Section 4.6(c) will be required) until the occurrence of the earliest Trigger Event. If such subdivision right or combination warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 4.6(c), (1) in the case of any such rights or warrants to which paragraphs 7(a)shall all have been redeemed or repurchased without exercise by any holders thereof, 7(b) and7(c) apply, respectively (and any the Conversion Rate increase required 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 this paragraph 7(d) a holder of Common Stock 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 Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to assuming 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “the date fixed for the determination of stockholders entitled to receive holder had retained such rights or warrants”), “the Record Date fixed for the determination made to all holders of Common Stock as of the stockholders entitled to receive date of such redemption or repurchase, and (2) in the case of such rights or warrants” and such “Record Date” within warrants all of which shall have expired or been terminated without exercise, the meaning of paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination Conversion Rate shall be disregarded in connection with readjusted as if such dividend or distributionrights and warrants had never been issued.
(e1) 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 StockStock cash distributions in an aggregate amount that, cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) together with the aggregate amount of (A) any cash and the cash distributed fair market value (as 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 Rate adjustment pursuant to this Section 4.6 has been made and (yB) the number all other cash distributions to all or substantially all holders of shares of its Common Stock outstanding on made within the Record Date. In 12 months preceding the event that such dividend or distribution is not so paid or date of payment of the Triggering Distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 4.6 has been made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.exceeds an amount
(f2) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, made by the Company or any of its Subsidiaries for shares of Common Stock to shall expire and such tender offer (as amended upon the extent that 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 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 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 included payable in respect of any other tender offers by the payment 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 Rate 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 Rate 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 exceeds the Sale Price per share (as determined in accordance with subsection (e) of Common Stock on the Trading Day next succeeding this Section 4.6) as of the last date on which (the "Expiration Date") tenders or exchanges may be could have been made pursuant to such tender offer or exchange 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”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined ") multiplied by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including tendered shares but excluding any tendered or exchanged sharesshares held in the treasury of the Company) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective , then, immediately prior to the opening of business on the day following after the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescindedDate, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:Conver-
Appears in 1 contract
Samples: Indenture (Alza Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter (i) pay a dividend dividend, or make a distribution to all holders distribution, in shares of the its Common Stock, on its Common Stock, (ii) subdivide its outstanding Common Stock in shares into a greater number of shares, or (iii) combine its outstanding Common StockStock into a smaller number of shares, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening holder of business on the date following the date fixed any Debenture thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at of the close Company which such holder would have owned or have been entitled to receive after the happening of business on any of the Record Date fixed for events described above had such determination and Debenture been converted immediately prior to the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Dateevent. If any dividend or distribution of the type described in this paragraph 7(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b. An adjustment made pursuant to this Section 15.6(a) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, to become effective immediately after the opening Record Date in the case of business on a dividend and shall become effective immediately after the day following effective date in the day upon which such case of subdivision or combination becomes effectivecombination.
(cb) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on per share of Common Stock at the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price Conversion Rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after of issuance of such Record Date rights or warrants by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on the close date of business on the Record Date issuance of such rights or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into purchase, and of which the convertible securities so offered are convertible), and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date date of issuance of such rights or warrants 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. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date fixed for the determination of the 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date fixed Record Date 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 by the Company for such rights or warrants, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(dc) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock (excluding any distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary) any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) appliesCommon Stock) or evidences of its indebtedness or assets (other assets, including securities, but excluding (1than cash) any or rights or warrants to subscribe for or purchase any of its Debentures (excluding those referred to in paragraph 7(cSection 15.6(b) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(ehereof) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 15.6(c) called the “excluded securities”"Distributed Securities"), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close date of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The the denominator of which shall be the Current Market Price per share of the Common Stock on the Record Date mentioned below, and the denominator shall be the Current Market Price per share of the Common Stock on such date, Record Date less the fair market value on such Record Date (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive conclusive, and set forth described in a Board Resolutioncertificate filed with the Trustee) on Such date of the portion of the securities or other assets Distributed Securities 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)Stock. Such increase adjustment shall become effective immediately prior to the opening of business on the day following after the Record DateDate for the determination of stockholders entitled to receive such distribution. HoweverNotwithstanding the foregoing, in the event that the then fair market value (as so determined) of the portion of the securities Distributed Securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder Debentureholder 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) Distributed Securities such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to each Debenture on such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:this
Appears in 1 contract
Samples: Indenture (Whole Foods Market Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such the Conversion Rate in effect at the close of business on such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the sum total number of shares that would be outstanding immediately following such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting determination, such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 12.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case If the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case and, conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 If the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) for a period expiring 45 days or less from the date of issuance of such rights or warrants at a price per share (or having a Conversion Price conversion price per share) less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening close of business on the date after such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock outstanding on at 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), and
(2) and of which the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which equal to the aggregate offering price payable to exercise such rights or warrants (or the aggregate conversion price of the total number of shares convertible securities so offered for subscription or purchase (or purchase, which shall be determined by multiplying the aggregate Conversion number of shares of Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) divided by the Current Market Price as of the convertible securities so offered) would purchase at business day immediately preceding the announcement of the issuance of such Current Market Pricerights. 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 Rate shall be readjusted to be the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date Record 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, with the value of such consideration consideration, if other than cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors.
(d) In case If 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 paragraph 7(aSection 12.05(a) applies) or evidences of its indebtedness indebtedness, cash or other assets, assets (including securities, but excluding (1i) any rights or warrants of a type referred to in paragraph 7(cSection 12.05(c) and (3ii) dividends and distributions paid exclusively in cash referred pursuant to in paragraph 7(eSection 12.05(e)) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 12.05(d) called the “excluded securities”"Distributed Securities"), thenthen (unless the Company distributes such Distributed Securities for distribution to the holders of Notes on such dividend or distribution date (as if each Holder had converted such Note into Common Stock immediately prior to the Record Date with respect to such distribution)), in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price on such date, date and the denominator shall be such Current Market Price less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth described in a resolution of the Board Resolutionof Directors) on Such such date of the portion of the securities or other assets so distributed (other than excluded securities) Distributed Securities applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at the close of business on the such Record Date). Such , such increase shall to become effective immediately prior to the opening of business on the day following the Record Date. However; provided, however, that in the event that the then fair market value (as so determined) of the portion of the securities so distributed (other than excluded securities) Distributed 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 holder of Notes 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) Distributed Securities such Holder holder would have received had such Holder holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(dSection 12.05(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)distribution, it must in doing so the Board of Directors shall, to the extent possible, consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(fSection 12.05(g).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (Amkor Technology Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay or make a dividend or make a other distribution to all holders of the outstanding on its Common Stock exclusively in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be adjusted so that a Holder upon conversion shall be entitled to receive that number of shares of Common Stock it would have been entitled to after such dividend or other distribution if it had converted its Security immediately prior to such dividend or other distribution.
(b) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all holders of its Common Stock, rights, warrants or options entitling the holders thereof, for a period not exceeding 45 days, to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in Section 12.04(g)) of the -------- Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying such Conversion Rate by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate price of the total number of shares constituting so offered would purchase at the current market price per share (determined as provided in Section 12.04(g)), such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall to become effective immediately -------- after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if date fixed for such dividend or distribution had not been declareddetermination.
(bc) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assetsstock, including securities, but cash or assets (excluding (1) any rights rights, warrants or warrants options referred to in paragraph 7(c) and (3) dividends and distributions Section 12.04(b), any dividend or -------- distribution paid exclusively in cash and any dividend or distribution referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”Section 12.04(a), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying -------- the Conversion Rate in effect immediately prior to the close earlier of business on such distribution or the Record Date with respect determination of stockholders entitled to receive such distribution by a fraction:
(1) The numerator fraction of which the numerator shall be the current market price per share (determined as provided in Section 12.04(g)) and the denominator -------- shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on such date, current market price less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth described in a Board Resolution) ), on Such the date of such effectiveness, of the portion of the securities or other evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed (other than excluded securities) applicable to one share of Common Stock (determined Stock, such adjustment to become effective immediately prior to the opening of business on the basis day next following the later of (i) the date fixed for the payment of such distribution and (ii) the date 20 days after the notice relating to such distribution is given pursuant to Section 12.06 (such later date of (i) and (ii) being referred ----- to as the "Reference Date"). The provisions of this Section 12.04(d) shall not -------- be applicable to an event covered by Section 12.04(j). For purposes of this -------- Section 12.04(d) and Sections 12.04(a) and 12.04(b), any dividend or ------- ------- -------- distribution for which an adjustment is being made pursuant to this Section 12.04(d) that also includes shares of Common Stock or rights, warrants or -------- options to subscribe for or purchase shares of Common Stock shall be deemed instead to be (A) a dividend or distribution of the evidences of indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock or such rights, warrants or options (making any Conversion Rate adjustment required by this Section 12.04(d)) immediately followed by (B) a -------- dividend or distribution of such shares of Common Stock or such rights (making any further Conversion Rate adjustment required by Sections 12.04(a) or -------- 12.04(b)), except (1) the record date of such dividend or distribution as -------- defined in this Section 12.04(d) shall be substituted as "the date fixed for the ------- determination of stockholders entitled to receive such dividend or other distributions", "the date fixed for the determination of stockholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of Sections 12.04(a) and 12.04(b) and (2) 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 this 12.04(b). --------
(e) the excess of such combined amount over such 10% and (y) the number of shares of the Common Stock outstanding on the Record Date). Such increase record date and (iii) the numerator of which shall be equal to the current market price on such date, such adjustment to become effective immediately prior to the opening of business on the day following the Record Date. Howeverrecord date fixed for the payment of such distribution.
(f) In case a successful tender or exchange offer, in other than an odd lot offer, made by the event that Company or any Subsidiary for all or any portion of the then Common Stock shall involve an aggregate consideration having a 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, determined 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If good faith by the Board of Directors determines Directors, whose determination shall be conclusive and described in a Board Resolution) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) that, together with (i) the aggregate of the cash plus the fair market value of any distribution for purposes of this paragraph 7(d) (as determined in good faith 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 paragraph 7(g) to the extent possible, unless the Board of Directors Directors, whose determination shall be conclusive and described 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 Resolution), as of the Holder. For purposes expiration of this paragraph 7(d) and paragraphs 7(a)the other tender or exchange offer referred to below, 7(b) and 7(c), of consideration payable in respect of any dividend other tender or distribution to which this paragraph 7(d) is applicable that also includes shares exchange offer by the Company or a Subsidiary for all or any portion of Common Stock, a subdivision or combination of the Common Stock to concluded within the preceding 12 months and in respect of which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any no Conversion Rate increase required by adjustment pursuant to this paragraph 7(dSection 12.04(f) with respect to such dividend or distribution shall then be made), immediately followed by
has been made and (2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to such dividend or distribution shall then be made), except:
(Aii) the Record Date -------- aggregate amount 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 distributions to all holders of its the Common Stock, Stock made exclusively in cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), then within the preceding 12 months and in each such caserespect of which no Conversion Rate adjustment pursuant to Section 12.04(d) has been made, immediately after exceeds -------- 10% of the close product of business the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock outstanding (including any tendered --------- shares) on such datethe Expiration Time, the Conversion Rate shall be increased so that the same shall equal the price determined adjusted by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date Expiration Time by a fraction:
fraction of which the denominator shall be (i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 product of the cash distributed and (y) the number of shares of Common Stock outstanding on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair current market value of any other consideration included in the payment price per share (determined as provided in Section 12.04(g)) of Common Stock exceeds --------- the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of exchanged shares) at the Expiration Time by a fraction:
minus (1) the numerator of which shall be the sum of (xii) 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 maximum, being referred to as the “"Purchased Shares”") and (y) the numerator shall be the product of the number of shares of Common Stock outstanding (less any Purchased Sharesi) at the Expiration Time and the Sale Price of the Common Stock such current market price per share (determined in accordance with Section 12.04(g)) on the Trading Day next succeeding the Expiration Time, and
Time --------- times (2ii) the denominator of which shall be the such number of outstanding shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by less the Sale Price number of the Common Stock on the Trading Day next succeeding the Expiration Time. Such Purchased Shares, such increase (if any) shall to become effective immediately prior to the opening of business on the day following the Expiration Time.
(g) For the purpose of any computation under Sections 12.04(b), (d) -------- --- (e) and (f), the current market price per share of Common Stock on any date in --- question shall be deemed to be the average of the daily Closing Prices per share of Common Stock for the ten consecutive Trading Days immediately prior to the date in question; provided, however, that (i) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.04(a), (b), (c), (d), (e) or (f) ("Other Event") occurs on or after -------- --- --- --- --- --- the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (ii) if the "ex" date for any Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring prior to the "ex" date for the Other Event, and (iv) if the "ex" date for the Current Event is on or prior to the date in question, after taking into account any adjustment required pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value on the date in question (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12.04(c) -------- or (d), whose determination shall be conclusive and described in a Board --- Resolution) of the portion of the rights, warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or property being distributed applicable to one share of Common Stock. For the purpose of any computation under Section 12.04(f), the current market price per share of Common Stock on any date in question shall be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing on or after the latest (the "Commencement Date") of (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or exchange offer requiring such computation and (iii) the date of the last amendment, if any, of such tender or exchange offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the Trading Day next succeeding the Expiration Time of such tender or exchange offer (or, if such Expiration Time occurs before the close of trading on a Trading Day, not later than the Trading Day during which the Expiration Time occurs); provided, however, that if the "ex" date for any Other Event (other than the tender or exchange offer requiring such computation) occurs on or after the Commencement Date and on or prior to the Trading Day next succeeding the Expiration Time for the tender or exchange offer requiring such computation, the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such tender or exchange offer.
(i) No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate; provided, however, that any adjustments, which by reason of this Section 12.04(i) are not required to be made, shall be carried forward and -------- taken into account in any subsequent adjustment.
(j) In the event that the Company is obligated distributes assets, debt securities, rights, warrants or options (other than those referred to purchase shares pursuant in Section 12.04(b) -------- above) pro rata to holders of Common Stock, and the fair market value of the portion of assets, debt securities, rights, warrants or options applicable to one share of Common Stock distributed to holders of Common Stock exceeds the Average Sale Price (as defined below) per share of Common Stock, or such Average Sale Price exceeds such fair market value by less than $1.00, then so long as any such tender offer assets, debt securities, rights, options or exchange offerwarrants have not expired or been redeemed by the Company, but the Company is permanently prevented by applicable law from effecting shall make proper provision so that the Holder of any such purchases or all such purchases are rescindedSecurity upon conversion, the Conversion Rate shall again be adjusted rather than being entitled to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase adjustment in the Conversion Rate, no adjustment shall will be made for entitled to receive upon such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes conversion, in addition to the shares of this paragraph 7Common Stock otherwise issuable upon conversion, the following terms shall kind and amount of assets, debt securities, rights, warrants and options such Holder would have received had such Holder converted its Security immediately prior to the meanings indicated:date of determination of the holders entitled to such distribution.
Appears in 1 contract
Samples: Indenture (Interliant Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay or make a dividend or make a other distribution to all holders of the outstanding on its Common Stock exclusively in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be adjusted so that the Holder upon conversion shall be entitled to receive that number of shares of Common Stock it would have been entitled to after such dividend or other distribution if it had converted this Security immediately prior to such dividend or other distribution.
(b) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all holders of its Common Stock, rights, warrants or options entitling the holders thereof, for a period not exceeding 45 days, to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in Section 8.04(g)) of the Common ------- Stock on the date fixed for the determination of stockholders entitled to receive such rights, warrants or options, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying such Conversion Rate by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate price of the total number of shares constituting so offered would purchase at the current market price per share (determined as provided in Section 8.04(g)), such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall to become effective ------- immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if date fixed for such dividend or distribution had not been declareddetermination.
(bc) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assetsstock, including securities, but cash or assets (excluding (1) any rights rights, warrants or warrants options referred to in paragraph 7(c) and (3) dividends and distributions Section 8.04(b), any dividend or distribution ------- paid exclusively in cash and any dividend or distribution referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”Section 8.04(a), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion ------- Rate in effect immediately prior to the close earlier of business on such distribution or the Record Date with respect determination of stockholders entitled to receive such distribution by a fraction:
(1) The numerator fraction of which the numerator shall be the current market price per share (determined as provided in Section 8.04(g)) and the denominator shall be such Current Market Price, and
(2) The denominator of which shall be the Current Market Price on such date, ------- current market price less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth described in a Board Resolution) ), on Such the date of such effectiveness, of the portion of the securities or other evidences of indebtedness, shares of capital stock, securities, cash and 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day next following the Record Date. However, in the event that the then fair market value later of (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 thereofi) 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 date fixed for the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(d) by reference to the actual or when issued trading market for any securities comprising all or part payment of such distribution and (other than excluded securities), it must in doing so consider ii) the prices in date 20 days after the notice relating to such market over the same period (the “Reference Period”) used in computing the Current Market Price distribution is given pursuant to paragraph 7(gSection 8.06 (such later date of (i) and (ii) being referred ---- to as the extent possible, unless the Board "Reference Date"). The provisions of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would this Section 8.04(d) shall not be in the best interests of the Holder------- applicable to an event covered by Section 8.04(j). For purposes of this paragraph 7(dSection ------- 8.04(d) and paragraphs 7(a), 7(bSections 8.04(a) and 7(c8.04(b), any dividend or distribution for which ------- ------- ------- an adjustment is being made pursuant to which this paragraph 7(dSection 8.04(d) is applicable that also includes ------- shares of Common StockStock or rights, a subdivision warrants or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants options to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), shall be deemed instead to be:
be (1A) a dividend or distribution of the evidences of indebtedness, assetscash, property, shares of capital stock, rights stock or warrants securities other than such shares of Common Stock, such subdivision or combination Stock or such rights rights, warrants or warrants to which paragraphs 7(a), 7(b) and7(c) apply, respectively options (and making any Conversion Rate increase adjustment required by this paragraph 7(dSection 8.04(d)) with respect to such dividend or distribution shall then be made), immediately followed by
by (2B) a dividend or distribution of such ------- shares of Common Stock, such subdivision or combination Stock or such rights or warrants (and making any further Conversion Rate increase adjustment required by paragraphs 7(aSections 8.04(a) or 8.04(b)), 7(b) and 7(c) with respect to such dividend or distribution shall then be made), except:
except (A1) the Record Date record date ------- ------- of such dividend or distribution as defined in this Section 8.04(d) shall be ------- substituted as (x) “"the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”distributions", “Record Date fixed for such determinations” and “Record Date” within the meaning of paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “"the date fixed for the determination of stockholders entitled to receive such rights rights, warrants or warrants”, “options" and "the Record Date date fixed for the determination of the stockholders entitled to receive such rights or warrants” and such “Record Date” determination" within the meaning of paragraph 7(c), and
Sections 8.04(a) and 8.04(b) and (B2) 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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereofthis 8.04(d), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:-------
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter while any of the Notes are outstanding pay a dividend or make a distribution to all holders of the outstanding Common Stock Ordinary Shares in shares of Common StockOrdinary Shares, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the Record Date date fixed for the determination of shareholders entitled to receive such determination and dividend or other distribution plus the total number of shares Ordinary Shares constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such Ordinary Shares outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. For the purpose of this paragraph (a), the number of Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company. The Company will not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 15.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall hereafter while any of the Notes are outstanding issue rights or warrants to all holders of its outstanding Ordinary Shares entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of shareholders entitled to receive such rights or warrants) to subscribe for or purchase Ordinary Shares at a price per share less than the average of the Closing Sale Prices of the Ordinary Shares for the 10 Trading Days immediately preceding the declaration date for such distribution, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such declaration date by a fraction,
(i) the numerator of which shall be the number of Ordinary Shares outstanding as of the close of business on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the total number of additional Ordinary Shares offered for subscription or purchase, and
(ii) the denominator of which shall be the sum of the number of Ordinary Shares outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the number of shares that the aggregate offering price of Common Stock the total number of shares so offered would purchase at a price equal to the average of the Closing Sale Prices of the Ordinary Shares for the 10 Trading Days immediately preceding the declaration date for such distribution, such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that Ordinary Shares are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of shareholders 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 Ordinary Shares at a price less than the average of the Closing Sale Prices of the Ordinary Shares for the 10 Trading Days immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding Ordinary Shares shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock Ordinary Shares shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrantscase, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the such Conversion Rate 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 Ordinary Shares outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription immediately after giving effect to such subdivision or purchase (or into which the convertible securities so offered are convertible), and
(2) combination and the denominator of which shall be the number of shares of Common Stock Ordinary Shares 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. 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 prior to such rights subdivision or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 Directorscombination.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares Ordinary Shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 15.05(b), and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 15.05(a) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 15.05(d)) called the “excluded securities”"Securities")), then, in each such case, subject case (unless the Company elects to reserve such Securities for distribution to the second succeeding paragraph Noteholders upon the conversion of this paragraph 7(d)the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the Ordinary Shares to which such holder is entitled, the amount and kind of such Securities that such holder would have received if such holder had converted its Notes into Ordinary Shares immediately prior to the Record Date for such distribution of the Securities) the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Securities 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). Such increase shall Ordinary Share, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value Fair Market Value (as so determined) of the portion of the securities Securities so distributed (other than excluded securities) applicable to one share of Common Stock Ordinary Share 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 Noteholder 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) Securities such Holder holder would have received had such Holder holder converted such each Note (or portion thereof) immediately prior to such on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 15.05(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 paragraph 7(g) to on 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 . Notwithstanding the meaning of paragraph 7(a)foregoing, (y) “if the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 Securities distributed by the Company shall, by dividend or otherwise, distribute to all holders of its Common StockOrdinary Shares consist of capital stock of, cash (excluding any cash that is distributed as part of or similar equity interests in, a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of Subsidiary or other business on such dateunit, the Conversion Rate shall be increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in with respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time distribution by a fraction:,
(1i) the numerator of which shall be the sum of (xA) the fair market value (determined as aforesaid) average of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms Closing Sale Prices of the tender offer or exchange offerOrdinary Shares for the ten (10) of all shares validly tendered or exchanged Trading Days commencing on and not withdrawn as including the fifth Trading Day after the Ex-Dividend Time plus (B) the Fair Market Value of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product securities distributed in respect of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of each Ordinary Share for which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:Section 15.05
Appears in 1 contract
Samples: Indenture (Amdocs LTD)
Adjustment of Conversion Rate. The Conversion Rate rate at which each share of This Series may be converted into Common Stock (hereinafter called the "conversion rate") shall be subject to the following adjustments, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders a. While any such share of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution This Series shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which outstanding, in case this Corporation shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case subdivide the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate conversion rate in effect at the opening of business on the day following the day upon which immediately prior to such subdivision becomes effective subdivision, shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, increase to become effective immediately after the opening of business on the day date following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning .
b. Any dividend to holders of paragraph 7(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 paragraph 7(c), and
(B) any Common Stock in shares of Common Stock included in such dividend or distribution shall not be deemed “considered a subdivision of the outstanding at the close shares of business on the date fixed for such determination” within the meaning of paragraph 7(a) Common Stock and any increase or reduction an adjustment in the conversion rate shall be made in accordance with the provisions of Paragraph 8a, with respect to the subdivision of outstanding shares of Common Stock.
c. No adjustment of the conversion rate shall be made by reason of the issuance of Common Stock to non-shareholders of the Corporation in exchange for cash, property or services, provided that if the Corporation shall offer to the holders of the Corporation's Common Stock any rights to subscribe for any securities of the Corporation, then the holders of This Series shall be entitled to subscribe for the purchase of the same number of securities on identical terms as they would have been entitled had they held that number of shares of Common Stock into which the shares of This Series was convertible on such date.
d. In case the Corporation shall be reorganized or recapitalized or shall be consolidated with or merged into another corporation, or shall sell or transfer its property and assets as, or substantially as, an entirety, proper provisions shall be made as part of the terms of such reorganization, recapitalization, consolidation, merger, sale or transfer whereby the holder of any shares of This Series outstanding immediately prior to such event shall thereafter be entitled to such conversion rights with respect to securities of the corporation resulting from such subdivision reorganization, recapitalization, consolidation or combination merger, or to which such sale or transfer shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shallmade, by dividend or otherwise, distribute to all holders of its Common Stock, cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior substantially equivalent to the close of business on conversion rights provided for herein with respect to such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredThis Series.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Antares Resources Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. For the purpose of this clause (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 16.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on the Record Date date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of stockholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 a price less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 16.05(b), and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 16.05(a)) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 16.05(d) called the “excluded securities”"SECURITIES"), then, in each such case, subject case (unless the Company distributes such Securities for distribution to the second succeeding paragraph of this paragraph 7(dNoteholders on such dividend or distribution date (as if each Noteholder had converted such Note into Common Stock immediately prior to the Record Date with respect to such distribution)), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Securities 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value (as so determined) of the portion of the securities 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 Noteholder 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) Securities such Holder holder would have received had such Holder holder converted such each Note (or portion thereof) immediately prior to such on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 16.05(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 paragraph 7(g) to on the extent possibleapplicable Record Date. Notwithstanding the foregoing, unless if 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution requiring an adjustment pursuant to which this paragraph 7(dclause (d) is applicable that also includes shares consists of Common Stock, a subdivision capital stock of any class or combination of Common Stock to which paragraph 7(b) appliesseries, or rights similar equity interests, of or warrants relating to subscribe for a Subsidiary or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution other business unit 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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such dateCompany, the Conversion Rate shall be increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in with respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time distribution by a fraction:,
(1i) the numerator of which shall be the sum of (xA) the fair market value (determined as aforesaid) average 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 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 Expiration Time and the Closing Sale Price Prices of the Common Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day after the date (the "EX-DIVIDEND DATE") on which "ex-dividend trading" commences for such distribution on the Trading Day next succeeding the Expiration Time, and
NASDAQ National Market or such other national or regional exchange or market on which such securities are then listed or quoted plus (2B) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price Fair Market Value of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be securities distributed in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:respect of
Appears in 1 contract
Samples: Indenture (Atherogenics Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay issue Common Shares as a dividend or make a distribution to all holders of the outstanding Common Stock in shares Stock, or shall effect a subdivision into a greater number of Common StockShares or combination into a lesser number of Common Shares, the Conversion Rate shall be adjusted based on the following formula: CR¢ = CR0 x OS¢ OS0 where CR0 = the Conversion Rate in effect at immediately prior to the opening of business on the date following the date fixed Ex-Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying or the effective date of such share split or combination, as the case may be; CR¢ = the Conversion Rate by a fraction:
(1) in effect as of the numerator Ex-Date for such dividend or distribution or the effective date of which shall be such share split or combination, as the sum of case may be; OS0 = the number of shares Common Shares outstanding immediately prior to such event; and OS¢ = the number of Common Stock Shares outstanding at the close of business on the Record Date fixed for immediately after such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of sharesevent. Such increase adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Daterecord date fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 8.04(a) is declared but not so paid or made, or the outstanding Common Shares are not subdivided or combined, as the case may be, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Trustees determines not to pay such dividend or distribution, or subdivide or combine the outstanding Common Shares, as the case may be, to the Conversion Rate which that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 to all or warrants to substantially all holders of its outstanding shares of Common Stock Shares any rights, warrants or convertible securities entitling them (for a period of not more than 60 daysexpiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) Shares at a price per share (or having a Conversion Price per share) less than the Current Market Last Reported Sale Price of the Common Shares on the Record Date fixed for Business Day immediately preceding the determination date of stockholders entitled to receive announcement of such rights or warrantsissuance, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business based 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying formula: CR¢ = CR0 x OS0 + X OS0 + Y where CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Ex-Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying ; CR¢ = the Conversion Rate in effect as of the Ex-Date for such distribution; OS0 = the number of Common Shares outstanding immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:event;
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustmentsadjustment, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction:
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such determination determination; and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 12.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined or reclassified into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination or reclassification becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 subdivision, combination or combination reclassification becomes effective.
(c) In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 12.4(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (to subscribe for or purchase, for a period of not more less than 60 45 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying dividing the Conversion Rate in effect at the opening of business on the date after such Record Date by a fraction:
(1i) the numerator 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), and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date 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
(ii) 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. 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 warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 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 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 or substantially holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(aSection 12.4(a) applies) or evidences of its indebtedness indebtedness, cash or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 12.4(c), (2) and any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.12 applies, (3) dividends and distributions paid exclusively in cash referred to or (4) any dividends or distributions described in paragraph 7(eSection 12.4
(a) (the securities and assets described in foregoing clauses (1)and 1), (2), (3) and (4) hereinafter in this paragraph 7(dSection 12.4(d) called the “excluded "securities”"), then, in each such case, subject to the second succeeding paragraph of except as otherwise provided in this paragraph 7(dSection 12.4(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1i) The the numerator of which shall be such Current Market Price, and
(2) The denominator 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) Fair Market Value on Such 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
(ii) the denominator of which shall be such Current Market Price on such Record Date. Such increase shall become effective immediately prior to the opening of business on the day following the Record Daterecord date for such distribution. However, in the event that the then fair market value 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 Security (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 Security (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 Rate shall again be adjusted to be the Conversion Rate 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 Fair Market Value of any distribution for purposes of this paragraph 7(dSection 12.4(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)distribution, 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 paragraph 7(gSection 12.4(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value Fair Market Value during the Reference Period would not be in the best interests interest of the HolderHolders. Notwithstanding the foregoing, in the event any such distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Company's Subsidiaries (a "Spin-Off"), the Conversion Rate shall be increased so that the same shall be equal to the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(i) the numerator of which shall be shall be the Current Market Price of the Common Stock on such Record Date and
(ii) the denominator of which the Current Market Price of the Common Stock, plus the Fair Market Value of the portion of the distributed assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Record Date), determined as set forth below; and such increase shall become effective immediately prior to the opening of business on the day following the last Trading Day of the Spin-Off Valuation Period. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. In the case of a Spin-Off, the Fair Market Value of the securities to be distributed shall equal the average of the Closing Sale Prices of such securities on the principal securities market on which such securities are traded for the five consecutive Trading Days commencing on and including the sixth day of trading of those securities after the effectiveness of the Spin-Off (the "Spin-Off Valuation Period"), and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten public offering of the securities in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities distributed in the Spin-Off shall mean such public offering price of such securities and the Current Market Price shall mean the Closing Sale Price for the Common Stock on the same Trading Day. 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) 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 12.4(d) (and no adjustment to the Conversion Rate under this Section 12.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 12.4(d):
(1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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 or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and
(2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. For purposes of this paragraph 7(dSection 12.4(d) and paragraphs 7(aSections 12.4(a), 7(b12.4(b) and 7(c12.4(c), any dividend or distribution to which this paragraph 7(dSection 12.4(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(bSection 12.4(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(cSection 12.4(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 paragraphs 7(aSections 12.4(a), 7(b12.4(b) and7(cand 12.4(c) apply, respectively (and any Conversion Rate increase adjustment required by this paragraph 7(dSection 12.4(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 Rate increase required reduction adjustment by paragraphs 7(aSections 12.4(a), 7(b12.4(b) and 7(c12.4(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 paragraph 7(aSection 12.4(a), (y) “"the day upon which such subdivision becomes effective” " and “"the day upon which such combination becomes effective” " within the meaning of paragraph 7(bSection 12.4(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 paragraph 7(cSection 12.4(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay or make a dividend or make other distribution in shares of Common Stock, subdivide outstanding shares of Common Stock into a distribution to all holders greater number of shares of Common Stock or combine the outstanding shares of Common Stock in into a lesser number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the date day following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution distribution, or the Record Date for such subdivision or combination, as the case may be, shall be increased by multiplying such adjusted based on the following formula:
1 1 OS CR = CR x ----- 0 OS 0 where, CR = the Conversion Rate by a fraction:
(1) in effect at the numerator close of which shall be business 0 on the sum of Record Date 1 CR = the Conversion Rate in effect immediately after the Record Date OS = the number of shares of Common Stock outstanding at the 0 close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be 1 OS = the number of shares of Common Stock that would be outstanding immediately after giving effect to such subdivision event If, after any such Record Date, any dividend or combination and distribution is not in fact paid or the denominator of which shall be the number of outstanding shares of Common Stock are not subdivided or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or subdivide or combine the outstanding immediately prior to such subdivision or combination. Such reduction or increaseshares of Common Stock, as the case may be, to become effective immediately after the opening of business on the day following the day upon which Conversion Rate that would have been in effect if such subdivision or combination becomes effectiveRecord Date had not been fixed.
(cb) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (for a period expiring 45 days or securities convertible into Common Stock) less from the date of issuance of such rights or warrants at a price per share (or having a Conversion Price per share) less than the Current Market Price of the Common Stock (as defined in (h)), on the Record Date fixed for business day immediately preceding the determination announcement of stockholders entitled to receive such rights or warrantsissuance, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicatedformula:
Appears in 1 contract
Samples: Indenture (Dov Pharmaceutical Inc)
Adjustment of Conversion Rate. The Conversion Rate shall (but not the Next Financing Conversion Rate) will be subject to adjustments, calculated by the Company, adjustments from time to time as follows:
(a1) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution Conversion Record Date shall be increased reduced by multiplying such Conversion Rate by a fraction:
: (1A) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date fixed for the determination of the holders entitled to such determination dividend or distribution; and (B) the denominator of which shall be the sum of such number of shares referred to in (A) above and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase reduction in the Conversion Rate shall become effective immediately after the opening of business on the day following the Conversion Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 3(e)(1) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that otherwise would then be in effect if such dividend or distribution had not been declared.
(b2) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increasedreduced, and conversely, in case the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reducedproportionately increased, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may beapplicable, 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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.
(dA) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of capital stock Capital Stock of the Company (other than any dividends or distributions to which paragraph 7(aSection 3(e)(1) applies) or evidences of its indebtedness indebtedness, cash or other assets, including securities, but excluding dividends or distributions of stock, securities or other property or assets (1including cash) any rights in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or warrants referred conveyance to in paragraph 7(cwhich Section 3(f) and applies (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the such Capital Stock, evidences of its indebtedness, cash, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 3(e)(3) called the “excluded securitiesDistributed Assets”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Conversion Record Date with respect to such distribution by a fraction:
: (1i) The the numerator of which shall be such Current the Fair Market Price, and
(2) The denominator Value of which shall be the Current Market Price Common Stock of the Company on such date, date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolutionresolution) on Such such date of the portion of the securities or other assets Distributed 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 Conversion Record Date). ; and (ii) the denominator of which shall be such Fair Market Value of the Common Stock of the Company on such date.
(B) Such increase reduction in the Conversion Rate shall become effective immediately prior to the opening of business on the day following the Conversion Record Date. However, in the event that the then fair market value (as so determined) of the portion of the securities Distributed Assets so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Fair Market Price Value on the Conversion Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each the Holder of this Convertible Note shall have the right to receive upon conversion of a Note hereof (or any portion thereofhereof) the amount of securities so distributed (other than excluded securities) such Distributed Assets the Holder would have received had such the Holder converted such this Convertible Note (or portion thereofhereof) immediately prior to such Conversion Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which otherwise would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1i) the numerator of which shall be the sum of the total number of shares of Common Stock outstanding at the close of business on such Record Date and the total number of shares of Common Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the such Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of sharesDate. Such increase shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide or split its outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at immediately prior to the opening of business on the day following the day upon which such subdivision or split becomes effective shall be proportionately increased, and and, conversely, in case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, combine its outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at immediately prior to the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, as the case may be, to become effective immediately after prior to the opening of business on the day following the day upon which such subdivision subdivision, split or combination becomes effective, so that the Holder of any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Note been converted immediately prior to the happening of such event adjusted as a result of such event.
(c) In case the Company shall shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market Pricethe Closing Sale Price of the Common Stock on the date of announcement. Such adjustment increase shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (Synaptics Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) so that the numerator Holder of which any Note thereafter surrendered for conversion shall be the sum of the entitled to receive that number of shares of Common Stock outstanding at which it would have received had such Note been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number event as well as such additional shares it would have received as a result of sharessuch event. Such increase shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide its outstanding shares of Common Stock shall be subdivided into a greater number of Common Stock or combine its outstanding shares of Common Stock into a smaller number of Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall be adjusted so that the Holder of any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which it would have received had such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding Note been converted immediately prior to the happening of such subdivision or combinationevent as well as such additional shares as it would have received as a result of such event. Such reduction or increase, as the case may be, to adjustment shall become effective immediately after prior to the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market PriceClosing Sale Price of the Common Stock. Such adjustment increase shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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.
(dA) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of any class Common Stock are not changed or exchanged), shares of its capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness Indebtedness or other assets, including securities, but excluding (1i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in paragraph 7(c) and Section 12.3(c), (3iii) dividends and distributions paid exclusively in cash referred to in paragraph 7(eSection 12.3(e) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 12.3(d) called the “excluded securities”"DISTRIBUTED ASSETS"), then, in each such case, subject to the second succeeding paragraph paragraphs (D) and (E) of this paragraph 7(dSection 12.3(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (Willbros Group Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay (i) issue shares of its Common Stock as a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares of or (ii) subdivide, combine or reclassify its outstanding Common Stock, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at which it would have been entitled to (without giving effect to any arrangement pursuant to such dividend, distribution, subdivision, combination or reclassification not to issue fractional shares of Common Stock) had such Security been converted immediately prior to the close record date of business on such event or the Record Date fixed for happening of such determination and event. An adjustment made pursuant to this subsection (a) shall become effective immediately upon the total number issuance in the case of shares constituting such a dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase distribution and shall become effective immediately after the opening effective date in the case of business on the day following the Record Date. If any dividend a subdivision, combination or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredreclassification.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 conversion price per share) less than the Current Market Price per share (as determined in accordance with subsection (f) of this Section 4.6) of Common Stock on the Record Date fixed record date for the determination such issuance (other than a distribution of stockholders entitled rights pursuant to receive such any then-existing shareholder rights or warrantsplan), the Conversion Rate in effect immediately prior to the close of business on the record date for the issuance shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at immediately prior to the opening close of business on the such record date after such Record Date by a fraction:
fraction of which (1A) the numerator of which shall be the sum of (I) the number of shares of Common Stock outstanding on (excluding shares held in the treasury of the Company) at the close of business on such record date and (II) the Record Date plus the total aggregate number of additional shares (the “Underlying Shares”) of Common Stock underlying all such issued rights or warrants (whether by exercise, conversion, exchange or otherwise) and (B) the denominator shall be the sum of (I) number of shares of Common Stock so offered for subscription or purchase outstanding (or into which excluding shares held in the convertible securities so offered are convertible), and
treasury of the Company) at the close of business on such record date and (2II) the denominator 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 exercise, conversion, exchange or other price of at which the total number of shares so offered Underlying Shares may be subscribed for subscription or purchase (purchased pursuant to such rights or the aggregate Conversion Price of the convertible securities so offered) warrants would purchase at such Current Market PricePrice per share of Common Stock. Such adjustment increase shall become effective immediately after prior to the opening of business on the day Business Day following the Record Date fixed for determination of stockholders entitled to receive such record date. Such adjustment shall be made successively whenever any such rights or warrantswarrants are issued, and shall become effective immediately after such record date. To the extent that such shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such the record date fixed for the determination of stockholders shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders of Common Stock to subscribe for or purchase shares of Common Stock at a price less than such the Current Market Price, Price per share of Common Stock and in determining the aggregate offering price of such the total number of shares of Common StockStock so offered, there shall be taken into account any consideration received by the Company 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(d) with respect to such dividend amounts payable on exercise 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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributionconversion thereof.
(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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture (Skyworks Solutions Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day Business Day following the Record Datedate fixed for such determination. For the purpose of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this paragraph 7(aSection 16.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on the Record Date date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after fixed for determination of stockholders entitled to receive such Record Date rights or warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day Business Day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the Business Day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the Business Day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1) any rights or warrants referred to in paragraph 7(cSection 16.05(b), excluding any dividends or distributions in connection with the liquidation or winding up of the Company, and excluding any dividend or distribution (x) and (3) dividends and distributions paid exclusively in cash or (y) referred to in paragraph 7(eSection 16.05(a) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 16.05(d)) called the “excluded securities”"SECURITIES")), then, in each such case, subject case (unless the Company elects to reserve such Securities for distribution to the second succeeding paragraph Debentureholders upon the conversion of this paragraph 7(dthe Debentures so that any such holder converting Debentures will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Debentures into Common Stock immediately prior to the Stock Record Date), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Stock Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Stock Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Stock Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Stock Record Date of the portion of the securities or other assets Securities 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day Business Day following the such Stock Record Date. However, in the event ; provided that if the then fair market value Fair Market Value (as so determined) of the portion of the securities 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 Stock Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder Debentureholder 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) Securities such Holder holder would have received had such Holder holder converted such Note (or portion thereof) immediately prior to such each Debenture on the Stock Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 16.05(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 on the applicable Stock Record Date. Notwithstanding the foregoing, if the Securities distributed by the Company to paragraph 7(gall holders of its Common Stock consist of capital stock of, or similar equity interests in, a Subsidiary or other business unit, the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the Stock Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the sum of (x) the average Closing Sale Price of one share of Common Stock over the ten consecutive Trading Day period (the "SPINOFF VALUATION PERIOD") commencing on and including the fifth Trading Day after the date on which "ex-dividend trading" commences on the Common Stock on the New York Stock Exchange or such other national or regional exchange or market on which the Common Stock is then listed or quoted and (y) the average Closing Sale Price over the Spinoff Valuation Period of the portion of the Securities so distributed applicable to one share of Common Stock; and
(ii) the denominator of which shall be the average Closing Sale Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the Business Day following such Stock Record Date; provided that the Company may in lieu of the foregoing adjustment make adequate provision so that each Debentureholder shall have the right to receive upon conversion the amount of Securities such holder would have received had such holder converted each Debenture on the Stock Record Date with respect to such distribution. 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) 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 16.06 (and no adjustment to the Conversion Rate under this Section 16.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the extent possibleConversion Rate shall be made under this Section 16.05(d). If any such right or warrant, unless including any such existing rights or warrants distributed prior to the Board date of Directors in 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 Stock Record Date with respect to new rights or warrants with such rights (and a Board Resolution determines in good faith that determining termination or expiration of the fair market value during existing rights or warrants without exercise by any of the Reference Period would not be holders thereof). In addition, in the best interests event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the Holdertype described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 16.06 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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 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 redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 16.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Debentures upon conversion by such holders of Debentures to Common Stock. For purposes of this paragraph 7(dSection 16.05(d) and paragraphs 7(a), 7(bSection 16.05(a) and 7(c(b), any dividend or distribution to which this paragraph 7(dSection 16.05(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofboth), shall be deemed instead to be:
be (1) a dividend or distribution of the evidences of indebtedness, assets, assets or shares of capital stock, rights or warrants stock other than such shares of Common Stock, such subdivision Stock or combination or such rights or warrants to which paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase adjustment required by this paragraph 7(dSection 16.05(d) with respect to such dividend or distribution shall then be made), ) immediately followed by
by (2) a dividend or distribution of such shares of Common Stock, such subdivision or combination Stock or such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:or
Appears in 1 contract
Samples: Indenture (Williams Companies Inc)
Adjustment of Conversion Rate. The Conversion Rate conversion rate shall be subject to adjustments, calculated by the Company, adjustment from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in or shall effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the subdivision into a greater number of shares of Common Stock outstanding or combination into a lesser number of shares of Common Stock, the conversion rate shall be adjusted so that the same shall equal the rate determined by multiplying the conversion rate in effect at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distributiondistribution or subdivision or combination, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or madeas applicable, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, ,
(i) the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 on the close of business on the such Record Date plus the total number of additional shares of Common Stock so offered for subscription as if such dividend payment, distribution, subdivision or purchase (or into which the convertible securities so offered are convertible), combination had occurred at such time; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on such Record Date, such adjustment to become effective immediately after the opening of business on the day following the Record Date plus for such determination.
(b) In case the Company shall issue or distribute rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring 60 days or less from the date of issuance of such rights or warrants) to purchase shares of Common Stock (or securities convertible into Common Stock) at less than (or having a conversion price per share less than) the Current Market Price of the Common Stock on the Record Date for such issuance or distribution, the conversion rate shall be adjusted so that the same shall equal the rate determined by multiplying the conversion rate in effect at the close of business on the Record Date for such distribution by a fraction,
(i) the numerator of which shall be the number of shares which of Common Stock outstanding at the aggregate offering price close of business on the Record Date for such issuance or distribution plus the total number of additional shares so of Common Stock offered for subscription or purchase or issuable pursuant to such rights or warrants, and
(ii) the denominator of which shall be (1) the number of shares of Common Stock outstanding at the close of business on the Record Date for such issuance or distribution plus (2) the quotient obtained by dividing (x) the aggregate Conversion Price price payable to exercise such rights by (y) the average of the convertible securities so offered) would purchase at Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days prior to the business day immediately preceding the announcement date for such Current Market Pricedistribution. Such adjustment shall be successively made whenever any such rights or warrants are issued, and 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 issuance or warrantsdistribution. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate conversion rate shall be readjusted to the Conversion Rate which conversion rate that would then be in effect had the adjustments made upon the issuance or distribution of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate conversion rate shall again be adjusted to be the Conversion Rate which conversion rate that would then be in effect if such date fixed Record Date for the determination of stockholders entitled to receive such rights issuance or warrants distribution 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.
(di) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Capital Stock of the Company (other than any dividends or distributions to which paragraph 7(a) appliesCommon Stock as covered by Section 10.06(a)) or evidences of its indebtedness indebtedness, cash or other assets, assets (including securitiessecurities other than Common Stock, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(ecovered by Section 10.06(b), Section 10.06(d) or Section 10.06(e)) (the securities described in foregoing clauses (1)and (2) any of such shares of Capital Stock, indebtedness, cash or other assets hereinafter in this paragraph 7(dSection 10.06(c)) called the “excluded securitiesDistributed Property”)), then, in each such case, subject to case the second succeeding paragraph of this paragraph 7(d), the Conversion Rate conversion rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate conversion rate in effect immediately prior to at the close of business on the Record Date with respect to such issuance or distribution by a fraction:,
(1) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Distributed Property 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). Such increase shall , such adjustment to become effective immediately prior to after the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value (as so determined) of the portion of the securities Distributed Property 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 receive, for each $1,000 principal amount of Securities upon conversion of a Note (or any portion thereof) conversion, the amount of securities so distributed (other than excluded securities) Distributed Property such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior owned an amount of shares of Common Stock equal to such the conversion rate on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate conversion rate shall again be adjusted to be the Conversion Rate which conversion rate that 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 paragraph 7(dSection 10.06(c) 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 on the applicable Record Date.
(ii) Notwithstanding Section 10.06(c)(i), if the Distributed Property distributed by the Company to all holders of its Common Stock consists of shares of Capital Stock of, or similar equity interests in, a subsidiary or other business unit of the Company that are, or, when issued, will be, traded on a U.S. securities exchange, the conversion rate shall be increased, in lieu of the adjustment provided for by Section 10.06(c)(i), so that the same shall be equal to the rate determined by multiplying the conversion rate in effect on the Record Date with respect to such distribution by a fraction,
(1) the numerator of which shall be the sum of (A) the average of the Closing Sale Prices of the Capital Stock or equity interests applicable to one share of Common Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date for such distribution plus (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date; and
(2) the denominator of which shall be the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately after the opening of business on the day following such Record Date. If Distributed Property distributed by the Company to all Holders of its Common Stock consists of shares of Capital Stock of, or similar equity interests in a subsidiary or other business unit of the Company that are not, or, when issued, will be, traded on a U.S. securities exchange, then the conversion rate then in effect will be adjusted as provided in paragraph 7(g(i) of this Section 10.06(c).
(iii) Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“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, shall be deemed not to have been distributed for purposes of this Section 10.06 (and no adjustment to the conversion rate under this Section 10.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the extent possibleconversion rate shall be made under this Section 10.06(c). If any such right or warrant, unless including any such existing rights or warrants distributed prior to the Board date of Directors in 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 Board Resolution determines in good faith that determining termination or expiration of the fair market value during existing rights or warrants without exercise by any of the Reference Period would not be holders thereof). In addition, in the best interests event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the Holder. type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the conversion rate under this Section 10.06 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the conversion rate 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 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 redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the conversion rate shall be readjusted as if such rights and warrants had not been issued.
(iv) For purposes of this paragraph 7(dSection 10.06(c), Section 10.06(a) and paragraphs 7(a), 7(b) and 7(cSection 10.06(b), any dividend or distribution to which this paragraph 7(dSection 10.06(c) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(bSection 10.06(a) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(cSection 10.06(b) applies (or any combination thereofboth), shall be deemed instead to be:
be (1) a dividend or distribution of the evidences of indebtedness, assets, assets or shares of capital stock, rights or warrants stock other than such shares of Common StockStock to which Section 10.06(a) applies, or rights or warrants to which Section 10.06(b) applies (and any conversion rate adjustment required by this Section 10.06(c) with respect to such subdivision dividend or combination distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants to which paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase further conversion rate adjustment required by this paragraph 7(dSection 10.06(a) and Section 10.06(b) 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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(ed) In case the Company shall, by dividend or otherwise, distribute exclusively Cash to all holders of its Common Stock, cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), Stock then and in each such case, immediately after the close of business on such date, the Conversion Rate conversion rate shall be increased so that the same shall equal the price determined adjusted by multiplying the Conversion Rate conversion rate in effect immediately prior to the close of business on such the Record Date for such dividend or distribution by a fraction:,
(i) The the numerator of which shall be equal to the Current Market Price on such Record Date, ; and
(ii) the denominator of which shall be equal to the Current Market Price on the such Record Date less an amount equal to minus the quotient of (x) the aggregate amount of Cash so distributed applicable to one share of Common Stock (determined on the cash distributed and (y) basis of the number of shares of Common Stock outstanding on the Record Date), such adjustment to be effective immediately after the opening of business on the day following the Record Date; provided that if the portion of the cash so distributed 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, for each $1,000 principal amount of Securities upon conversion, the amount of cash such Holder would have received had such Holder owned a number of shares of Common Stock equal to the conversion rate on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate conversion rate shall again be adjusted to be the Conversion Rate which conversion rate that would then be in effect if such dividend or distribution had not been declared.
(fe) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, offer made by the Company or any subsidiary for all or any portion of its Subsidiaries for shares of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to the extent that the cash stockholders of Cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds having a fair market value (as determined by the Sale Price per share Board of Common Stock on Directors, and described in a resolution of the Trading Day next succeeding Board of Directors) that as of the last date on which (the “Expiration Date”) tenders or exchanges may be made pursuant to such tender offer or exchange offer (as it may be amended) exceeds the “Current Market Price of the Common Stock on the Trading Day next preceding the Expiration Time”), then, and in each such caseDate, the Conversion Rate conversion rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate conversion rate in effect immediately prior to at the close of business on the date of the Expiration Time Record Date by a fraction:,
(1i) the numerator 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 of Common Stock validly tendered or exchanged and not withdrawn as of the Expiration Time Date (the shares deemed so accepted, accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of (A) the number of shares of Common Stock outstanding as of the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”), less any Purchased Shares, and (B) at the Expiration Time and average of the Closing Sale Price Prices of the Common Stock for the ten consecutive Trading Days commencing on the Trading Day next succeeding immediately following the Expiration TimeDate, and
(2ii) the denominator of which shall be (A) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time (including any Purchased Shares) multiplied by (B) the average of the Closing Sale Price Prices of the Common Stock for the ten consecutive Trading Days commencing on the Trading Day next succeeding immediately following the Expiration Time. Such increase (if any) shall Date, such adjustment to become effective immediately prior to after the opening of business on the day following the Expiration Time. In the event that If the Company is obligated to purchase shares pursuant to any such tender 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 Rate conversion rate shall again be adjusted to be the Conversion Rate which conversion rate that would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(gf) For purposes of this paragraph 7Section 10.06 the term “Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any Cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the following terms shall have date fixed for determination of holders of Common Stock entitled to receive such cash, securities or other property (whether such date is fixed by the meanings indicated:Board of Directors or by statute, contract or otherwise).
Appears in 1 contract
Samples: Indenture (WebMD Health Corp.)
Adjustment of Conversion Rate. The If the number of Ordinary Shares represented by the ADSs is changed, after the date of this Indenture, for any reason other than one or more of the events described in this Section 13.04, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Notes is based remains the same and make a corresponding inverse adjustment to the Conversion Price. However, the conversion price shall never be lower than the quota value of the Ordinary Shares. Notwithstanding the adjustment provisions set out in this Section 13.04 (Adjustment of Conversion Rate), if the Company distributes to holders of the Ordinary Shares any cash, rights, options, warrants, shares of Capital Stock or similar equity interest, evidences of indebtedness or other assets or property of the Company (but excluding any Expiring Rights) and a corresponding distribution is not made to holders of the ADSs, but, instead, the ADSs shall represent, in addition to Ordinary Shares, such cash, rights, options, warrants, shares of Capital Stock or similar equity interest, evidences of indebtedness or other assets or property of the Company, then an adjustment to the Conversion Rate set out in this Section 13.04 (Adjustment of Conversion Rate) shall not be made until and unless a corresponding distribution (if any) is made to holders of the ADSs, and such adjustment to the Conversion Rate shall be subject based on the distribution made to adjustmentsthe holders of the ADSs and not on the distribution made to the holders of the Ordinary Shares. However, calculated by in the Company, from time to time as follows:
(a) In case event that the Company shall hereafter pay a dividend issues or make a distribution distributes to all holders of the outstanding Common Stock in shares of Common StockOrdinary Shares any Expiring Rights, notwithstanding the immediately preceding sentence, the Company shall adjust the Conversion Rate pursuant to Section 13.04(b) (in effect at the opening case of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum Expiring Rights entitling holders of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (Ordinary Shares for a period of not more than 60 days) calendar days after the announcement date of such issuance to subscribe for or purchase shares Ordinary Shares) or Section 13.04(c) (in the case of Common Stock all other Expiring Rights). For the avoidance of doubt, if any event set out in this Section 13.04 (or securities convertible into Common StockAdjustment of Conversion Rate) at results in a price per share (or having a change to the number of Ordinary Shares represented by the ADSs, then such change shall be deemed to satisfy the Company’s obligation to effect the relevant adjustment to the Conversion Price per share) less than Rate on account of such event to the Current Market Price extent such change produces the same economic result as the adjustment to the Conversion Rate that would otherwise have been made on account of such event. Subject to the Record Date fixed for the determination of stockholders entitled to receive such rights or warrantsforegoing, the Conversion Rate shall be adjusted so from time to time by the Company if any of the following events set out in Sections 13.04(a) to 13.04(e) occurs, except that the same Company shall equal the price determined by multiplying not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in effect the case of (x) a share split or share combination or (y) a tender or exchange offer), at the opening same time and upon the same terms as holders of business on the date after such Record Date by ADSs and solely as a fraction:
result of holding the Notes, in any of the transactions set out in this Section 13.04 (1) the numerator Adjustment of which shall be the Conversion Rate), without having to convert their Notes, as if they held a number of shares ADSs equal to the Conversion Rate then in effect, multiplied by the principal amount (expressed in thousands) of Common Stock outstanding on Notes held by such Holder. Neither the close of business on Trustee nor the Record Date plus Conversion Agent shall have any responsibility to monitor 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), and
(2) the denominator 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 accuracy of the total number calculation of shares so offered for subscription or purchase (or any adjustment to the aggregate Conversion Price Rate. Notice of the convertible securities so offered) would purchase at such Current Market Price. Such any 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 Rate shall be readjusted given by the Company promptly to the Holders, the Trustee, the Paying Agent and the Conversion Agent and shall be conclusive and binding on the Holders, absent manifest error. The Conversion Rate which would then will be subject to adjustment in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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.following events:
(da) In case If the Company shall, by exclusively issues Ordinary Shares as a dividend or otherwisedistribution on all or substantially all the Ordinary Shares, distribute to all holders of its Common Stock shares of any class of capital stock of or if the Company (other than any dividends effects a share split or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d)share combination, the Conversion Rate shall be adjusted so that based on the same shall be equal to the price determined by multiplying following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect for such dividend or distribution, or immediately prior to such distribution by a fraction:
(1) The numerator the open of which shall be such Current Market Price, and
(2) The denominator 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 business on the basis Effective Date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date of such share split or share combination, as applicable; OS0 = the number of shares Ordinary Shares outstanding immediately prior to the close of the Common Stock outstanding business on the Record Date)Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable, before giving effect to any such dividend, distribution, share split or combination, as the case may be; and OS1 = the number of Ordinary Shares outstanding immediately after giving effect to such dividend or distribution, or immediately after the Effective Date of such subdivision or combination of Ordinary Shares, as applicable. Such increase Any adjustment made under this Section 13.04(a) shall become effective immediately prior to after the opening close 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 Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution set forth in this Section 13.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Company’s shareholders resolve at a general meeting not to be pay such dividend or distribution, to the Conversion Rate which that 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 paragraph 7(d) by reference to the actual declared 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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributionannounced.
(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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Indenture Agreement (Oatly Group AB)
Adjustment of Conversion Rate. The Base Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Base Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Datedate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 11.11(a) is declared but not so paid or made, the Base Conversion Rate shall again be adjusted to the Base Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights or warrants) 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 on average of the Record Date Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such distribution, the Base Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect immediately prior to the date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date warrants by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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 a price equal to the average of the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such Current Market Pricedistribution. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date 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 after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Base Conversion Rate shall be readjusted to the Base Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate which that 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 a price less than the average of the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such Current Market Pricedistribution, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Base Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Base Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1x) any rights or warrants referred to in paragraph 7(cSection 11.11(b), (y) and any dividend or distribution (3I) dividends and distributions paid exclusively in cash or (II) referred to in paragraph 7(eSection 11.11(a) and (z) any distribution referred to in Section 11.11(g)) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 11.11(d) called the “excluded securities”"Distributed Securities")), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Base Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Base Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price on such date, Record Date less the fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and set forth described in a resolution of the Board Resolutionof Directors) on Such date the Record Date of the portion of the securities or other assets Distributed Securities 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). Such increase shall Stock, such adjustment to become effective immediately prior to the opening of business on the day following the such Record Date. However, in the event ; provided that if the then fair market value Fair Market Value (as so determined) of the portion of the securities Distributed 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) Distributed Securities such Holder holder would have received had such Holder holder converted such Note (or portion thereof) immediately prior to such each Security on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value Fair Market Value of any distribution for purposes of this paragraph 7(dSection 11.11(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 on the applicable Record Date. Rights or warrants distributed by the Company to paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common Stock the Company's capital stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock, such subdivision or combination or such rights or warrants to which paragraphs 7(a), 7(b; (ii) and7(care not exercisable; and (iii) apply, respectively (and any Conversion Rate increase required by this paragraph 7(d) with are also issued in respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares future issuances of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(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 deemed not to have been distributed 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, Section 11.11 (and no adjustment to the following terms shall have the meanings indicated:Base Conversion Rate under this
Appears in 1 contract
Samples: Indenture (Wells Fargo & Co/Mn)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter (i) pay a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares 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 (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at which it would have owned had such Security been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number of sharesevent. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution and shall become effective immediately after the effective date in the case of the type described in this paragraph 7(a) is declared but not so paid subdivision or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declaredcombination.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 daysdays after such issuance) 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 conversion price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Record Date fixed record date for the determination of stockholders entitled to receive such rights rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the immediately prior to such record date after such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date such 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), and
(2) and of which the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate Conversion Price conversion price of the convertible securities so offered) would purchase at such Current Market Price. 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 Rate which shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible 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 (or securities convertible into as defined in subsection (d) of this Section 4.6) of Common Stock) actually deliveredStock on such record date. In the event that Such adjustment shall be made successively whenever any such rights rights, options or warrants are not so issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, options or warrants are exercisable not all rights, options or warrants shall have been exercised, the adjusted Conversion Rate shall again be adjusted immediately readjusted to be what it would have been based upon the Conversion Rate which would then be in effect if such date fixed for the determination number 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 additional shares of Common Stock at less than such Current Market Price, and in determining actually issued (or the aggregate offering price number of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value Stock issuable upon conversion of such consideration if other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(dc) In case the Company shall, by dividend or otherwise, shall distribute to all holders of its Common Stock any shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or Common Stock), evidences of its indebtedness or other assets, non-cash assets (including securities, securities of any person other than the Company but excluding (1) any rights dividends or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash or (2) dividends or distributions referred to in paragraph 7(esubsection (a) (the securities described in foregoing clauses (1)and (2) hereinafter in of this paragraph 7(d) called the “excluded securities”Section 4.6), thenor shall distribute to all holders of its Common Stock rights, options 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) and also excluding the distribution of rights to all holders of Common Stock pursuant to a Rights Plan (as defined below) adopted before or after the date of this Indenture), then in each such case, subject to the second succeeding paragraph of this paragraph 7(d), case the Conversion Rate shall be adjusted so that the same shall be equal to the price rate determined by multiplying the current Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price per share (as defined in subsection (d) of this Section 4.6) of the Common Stock on such date, record date and of which the denominator shall be Current Market Price per share (as defined in subsection (d) of 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, whose determination shall be conclusive evidence of such fair market value and set forth in a Board Resolutionwhich shall be evidenced by an Officers' Certificate delivered to the Trustee) on Such date of the portion of the securities capital stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such rights, options or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Daterecord date). Such increase adjustment shall be made successively whenever any such distribution is made and shall become effective immediately prior after the record date for the determination of stockholders entitled to the opening of business on the day following the Record Datereceive such distribution. However, in In the event that the then fair market value (as so determined) of the portion of the securities capital stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Record Datesuch record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder holder of a Security shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of securities capital stock, evidences of indebtedness or other non-cash assets so distributed (other than excluded securities) or of such Holder rights or warrants such holder would have received had such Holder holder converted each Security on such Note (or portion thereof) immediately prior to such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(dSection 4.6(c) 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 of the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of capital stock of, or similar equity interests in, a Subsidiary or other business unit, the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date with respect to such distribution by a fraction: the numerator of which shall be the sum of (x) the average Closing Price of one share of Common Stock over the ten consecutive Trading Day period (the "Spinoff Valuation Period") commencing on and including the fifth Trading Day after the date on which "ex-dividend trading" commences on the Common Stock on the Nasdaq National Market or such other national or regional exchange or market on which the Common Stock is then listed or quoted and (y) the average Closing Price over the Spinoff Valuation Period of the portion of the securities so distributed applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which "ex-dividend trading" commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to reserve the pro rata portion of such Securities so that each Holder of securities shall have the right to receive upon conversion the amount of such shares of capital stock or similar equity interests of such Subsidiary or business unit that such Holder of Securities would have received if such Holder of Securities had converted such Securities on the record date with respect to such distribution. With respect to any rights (the "Rights") that may be issued or distributed pursuant to paragraph 7(g) any rights plan that the Company implements after the date of this Indenture (any Rights that may be issued pursuant to any such future rights plan being referred to as, a "Rights Plan"), upon conversion of the Securities into Common Stock, to the extent possiblethat such Rights Plan is in effect upon such conversion, unless the Board holders of Directors 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 any such Rights Plan. Any distribution of rights or warrants pursuant to a Board Resolution determines in good faith that determining Rights Plan complying with the fair market value during the Reference Period would not be requirements set forth in the best interests of the Holder. For purposes immediately preceding sentence of this paragraph 7(dshall not constitute a distribution of rights or warrants pursuant to this Section 4.6(c). Rights or warrants (other than rights issued pursuant to a Rights Plan) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution distributed by the Company to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common the Company's Capital Stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events ("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, shall be deemed not to have been distributed for purposes of this Section 4.6 (and no adjustment to the Conversion Price under this Section 4.6 will be required) until the occurrence of the earliest Trigger Event, whereupon such subdivision rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 4.6(c). If any such right or combination 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 which paragraphs 7(a)purchase different securities, 7(b) and7(c) applyevidences of indebtedness or other assets, respectively 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 Conversion Rate increase required by this paragraph 7(dof 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 the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 4.6 was made, (1) in the case of any such rights or warrants which shall all have been redeemed, purchased by the Company or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption, purchase by the Company or repurchase to give effect to such dividend distribution or distribution shall then be made)Trigger Event, immediately followed by
(2) as the case may be, as though it were a dividend cash distribution, equal to the per share redemption or distribution of such shares repurchase price received by a holder or holders of Common Stock, such subdivision or combination or Stock with respect to such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to assuming 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “the date fixed for the determination of stockholders entitled to receive holder had retained such rights or warrants”), “the Record Date fixed for the determination made to all holders of Common Stock as of the stockholders entitled to receive date of such redemption or repurchase, and (2) in the case of such rights or warrants” and such “Record Date” within warrants which shall have expired or been terminated without exercise by any holders thereof, the meaning of paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination Conversion Rate shall be disregarded in connection with readjusted as if such dividend or distributionrights and warrants had not been issued.
(e1) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all holders of its Common Stock, cash (excluding any cash that is distributed as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such dateStock cash, the Conversion Rate shall be increased so that the same shall equal the price rate determined by multiplying such Conversion Rate in effect immediately prior to the Business Day immediately preceding the day on which such Triggering Distribution is declared ("Determination Date") by a fraction of which the numerator 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 and the denominator of which 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, 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), such increase 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 expire, then immediately prior to the opening of business on the day after 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"), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record the Expiration Date by a fraction:
(i) The numerator fraction of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the sum of (x) the fair market value aggregate consideration (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 maximum, being referred to as the “"Purchased Shares”") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased SharesShares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Sale 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 Time, and
(2) Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any tendered or exchanged sharesshares held in the treasury of the Company) at the Expiration Time multiplied by the Sale 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 Time. Such Date, such increase (if any) shall to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:day
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, in each case, to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the opening Close of business Business on the date following Trading Day immediately preceding the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such distribution; CR1 = the Conversion Rate by a fraction:
(1) in effect on the numerator of which shall be the sum of Ex-Dividend Date for such dividend or distribution; OS0 = the number of shares of Common Stock outstanding at the close Close of business Business on the Record Trading Day immediately preceding the Ex-Dividend Date fixed for such determination dividend or distribution; and OS1 = the total number of shares constituting of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend or other distribution, and
(2. Any adjustment made pursuant to this Section 6.04(a) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after prior to the opening Open of business Business on the day following the Record DateEx-Dividend Date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this paragraph 7(aSection 6.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Company publicly announces its decision not to make such dividend or distribution, to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 6.04(a), the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution shall not include shares of Common Stock held in treasury, if any. The Company will not pay any dividend or make any distribution on Common Stock held in treasury, if any.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be or combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the opening Close of business Business on the day following Trading Day immediately preceding the day upon which effective date of such combination becomes effective shall be reduced, in each such case, by multiplying such subdivision or combination; CR1 = the Conversion Rate by a fraction, in effect on the numerator effective date of which shall be such subdivision or combination; OS0 = the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately after giving effect to preceding the effective date of such subdivision or combination combination; and the denominator of which shall be OS1 = the number of shares of Common Stock that would be outstanding immediately prior to after, and solely as a result of, such subdivision or combination. Such reduction or increase, as the case may be, Any adjustment made pursuant to this Section 6.04(b) shall become effective immediately after prior to the opening Open of business Business on the day following the day upon which effective date of such subdivision or combination becomes effectivecombination.
(c) In case the Company shall issue rights (other than rights issued pursuant to a stockholder rights plan) or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (to purchase, for a period expiring within 45 calendar days of not more the date of announcement, Common Stock at an aggregate price per share less than 60 days) to subscribe the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date that the issuance of the rights or warrants was first publicly announced, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for or purchase such issuance; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock (or securities convertible into Common Stock) outstanding at a price per share (or having a Conversion Price per share) less than the Current Market Price Close of Business on the Record Trading Day immediately preceding the Ex-Dividend Date fixed for such issuance; X = the determination total number of stockholders entitled shares of Common Stock issuable pursuant to receive such rights or warrants; and Y = the number of shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. Any adjustment made pursuant to this Section 6.04(c) shall become effective immediately prior to the Open of Business on the Ex-Dividend Date for such issuance. In the event that such rights or warrants described in this Section 6.04(c) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 determining the event that aggregate price payable to exercise such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 Stockwarrants, there shall be taken into account any consideration received by the Company for such rights or warrants, warrants and the value of such consideration (if other than cash, to be determined by the Company’s Board of Directors). For purposes of this Section 6.04(c), the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance shall not include shares of Common Stock held in treasury, if any. The Company will not issue any rights or warrants in respect of shares of Common Stock held in treasury, if any.
(d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Common Stock Stock, shares of any class of capital stock the Company’s Capital Stock, evidences of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its Company’s indebtedness or other assets, including securities, but excluding excluding:
(1i) any dividends or distributions referred to in Section 6.04(a) above;
(ii) shares delivered in connection with subdivisions of Common Stock referred to in Section 6.04(b) above;
(iii) any rights or warrants referred to in paragraph 7(cSection 6.04(c) and above;
(3iv) dividends and distributions paid exclusively in cash any rights or warrants referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding last paragraph of this paragraph 7(dSection 6.04(d) below (to the extent and as specified therein);
(v) any dividends or distributions referred to in Section 6.04(e) below; and
(vi) any Public Spin-Offs to which the provisions set forth below in this Section 6.04(d) applies, then for these non-excluded transactions and events, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors) on the Ex-Dividend Date for such distribution of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this Section 6.04(d) is, however, one pursuant to which the payment of a dividend or other distribution on Common Stock consists of shares of Capital Stock of any class or series of, or similar equity interests in, a Subsidiary or other business unit of the Company (i.e. a “spin-off”) that are, or when issued, will be, traded or listed on The Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), the Conversion Rate shall will be adjusted so that based on the same shall be equal to the price determined by multiplying following formula: where CR0 = the Conversion Rate in effect immediately prior to at the close Close of business Business on the Record Trading Day immediately preceding the Ex-Dividend Date with respect to for such distribution by a fraction:
(1) The numerator of which shall be distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such Current Market Price, and
(2) The denominator of which shall be distribution; FMV0 = 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 average of the portion Last Reported Sale Prices of the securities Capital Stock or other assets so similar equity interests distributed (other than excluded securities) in the Public Spin-Off to holders of Common Stock applicable to one share of Common Stock (determined during the 10 consecutive Trading Day period commencing on and including the basis effective date of the number Public Spin-Off (the “Public Spin-Off Valuation Period”); and MP0 = the average of shares the Last Reported Sale Prices of the Common Stock outstanding on during the Record Date)Public Spin-Off Valuation Period. Such increase Any adjustment made pursuant to this Section 6.04(d) shall become effective immediately prior to the opening Open of business Business on the day following the Record DateEx-Dividend Date for such distribution. 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 If 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 of the type described in this Section 6.04(d) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Company publicly announces its decision not to be pay such dividend or distribution, to the Conversion Rate which that 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 paragraph 7(d) by reference an adjustment 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 Conversion Rate is required pursuant to paragraph 7(gthis Section 6.04(d) during any settlement period in respect of Securities that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent possible, unless necessary in order to complete the Board of Directors calculations provided for 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 Holderthis Section 6.04(d). For purposes of this paragraph 7(d) and paragraphs 7(aSection 6.04(d), 7(b) and 7(c), any dividend rights or distribution warrants distributed by the Company to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision all or combination substantially all holders of Common Stock to which paragraph 7(b) applies, or rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common the Company’s Capital Stock (either initially or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereofunder certain circumstances), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, which rights or warrants other than warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock, such subdivision or combination or such rights or warrants to which paragraphs 7(a), 7(b; (ii) and7(care not exercisable; and (iii) apply, respectively (and any Conversion Rate increase required by this paragraph 7(d) with are also issued in respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such future issuances of shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 6.04(d) (and no adjustment to the Conversion Rate under this Section 6.04(d) will be required) until the occurrence of the earliest Trigger Event, whereupon such subdivision rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 6.04(d), except as set forth in Section 6.14. If any such rights or combination warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or 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 Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Section 6.14. In addition, except as set forth in Section 6.14, 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 the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 6.04(d) was made (including any adjustment contemplated by Section 6.14), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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 or holders of Common Stock with respect to such rights or warrants (and any further Conversion Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to assuming 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), and (z) as “the date fixed for the determination of stockholders entitled to receive holder had retained such rights or warrants”), “the Record Date fixed for the determination made to all holders of Common Stock as of the stockholders entitled to receive date of such redemption or repurchase, and (2) in the case of such rights or warrants” and such “Record Date” within warrant that shall have expired or been terminated without exercise by any holders thereof, the meaning of paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination Conversion Rate shall be disregarded in connection with readjusted as if such dividend or distributionrights and warrants had not been issued.
(e) In case the Company shall, by shall pay a dividend or otherwise, otherwise distribute to all or substantially all holders of its Common Stock, Stock a dividend or other distribution consisting exclusively of cash (excluding any cash that is distributed as part dividend or distribution made in connection with the liquidation, dissolution or winding up of a distribution referred to in paragraph 7(d) hereofthe Company, whether voluntary or involuntary), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall will be increased so that adjusted based on the same shall equal the price determined by multiplying following formula: where CR0 = the Conversion Rate in effect immediately prior to at the close Close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock Business on the Trading Day next succeeding immediately preceding the last Ex-Dividend date on which tenders for such dividend or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying distribution; CR1 = the Conversion Rate in effect immediately prior to close of business on the date Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Last Reported Sale Price Prices of the Common Stock on during the 10 consecutive Trading Day period ending on, and including, the Trading Day next succeeding immediately preceding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made Ex-Dividend Date for such tender offer dividend or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:distribution; and
Appears in 1 contract
Samples: Indenture (Evergreen Solar Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows; provided, that no single event shall cause an adjustment under more than one subsection of this Section 9.4 so as to result in duplication:
(a) In case the Company shall hereafter shall, at any time or from time to time while any of the Notes are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at the opening of business on the “ex” date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:,
(1i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for the determination of stockholders entitled to receive such determination and dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution, ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Date“ex” date for such distribution. If any dividend or distribution of the type described in this paragraph 7(aSection 9.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 distribute rights or warrants (other than any rights or warrants referred to in Section 9.4(d)) to all holders of its outstanding shares of Common Stock entitling them (to subscribe or purchase, for a period of not more than 60 days) to subscribe for 45 calendar days or purchase less, 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 on the Record Date fixed for declaration date of the determination of stockholders entitled to receive such rights or warrantsdistribution, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the “ex” date after for such Record Date distribution by a fraction:,
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on the close date fixed for determination of business on the Record Date stockholders entitled to receive such rights or warrants 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)purchase, and
(2ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which that 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. Such adjustment shall be successively made whenever any such rights or warrants are distributed, and shall become effective immediately after the opening of business on the day following the Record Date fixed “ex” date for determination of stockholders entitled to receive such rights or warrantsdistribution. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to after the expiration of such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such the “ex” date fixed for the determination of stockholders entitled to receive such rights or warrants distribution 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 by the Company for such rights or warrantswarrants and any amount payable on exercise or conversion thereof, the value Fair Market Value of such consideration consideration, if other than cash, to be determined in good faith by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its outstanding shares of Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1i) any Permitted Special Dividend, (ii) any rights or warrants referred of the type described in Section 9.4(c), (iii) any dividends or distributions in connection with a reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition to in paragraph 7(cwhich Section 9.5 applies, (iv) and (3) any dividends and or distributions paid exclusively in cash or (v) any dividends or distributions referred to in paragraph 7(eSection 9.4(a)) (any of the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 9.4(d) called the “excluded securitiesDistributed Assets”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to at the close opening of business on the Record Date with respect to “ex” date for such distribution by a fraction:,
(1i) The the numerator of which shall be such the Current Market PricePrice on the “ex” date for such distribution, and
(2ii) The the denominator of which shall be the Current Market Price on such date, the “ex” date less the fair market value Fair Market Value (as determined in good faith 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 Distributed 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). Such increase shall Stock, such adjustment to become effective immediately prior to after the opening of business on the day following “ex” date; provided that if the Record Date. However, in the event that the then fair market value Fair Market Value (as so determined) of the portion of the securities Distributed Assets 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“ex” date or such Current Market Price exceeds such Fair Market Value by less than $1.00, then in lieu of the foregoing adjustment, adequate provision may be made so that each holder of Notes shall have the right to receive upon conversion, for each $1,000 principal amount of Notes, the amount of Distributed Assets that such holder would have received had such holder owned a number of shares of Common Stock equal to the Conversion Rate on the record date for such distribution, in addition to the shares of Common Stock to which such holder is entitled upon conversion. If such distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Rights or warrants distributed by the Company to 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) 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 9.4 (and no adjustment to the Conversion Rate under this Section 9.4 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 9.4(d). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event with respect thereto for which an adjustment to the Conversion Rate under this Section 9.4 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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, in an amount equal to the per share redemption or repurchase price received by 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 redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 9.4(d) in respect of rights or warrants distributed on any Trigger Event to the extent that holders of the Notes participate in the distribution without conversion as a result of holding the Notes at the same time as holders of Common Stock participate with respect to such distribution and on the same terms as holders of Common Stock participate with respect to such distribution as if holders of the Notes, at such time, held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such holder, without having to convert their Notes. For purposes of this Section 9.4(d) and Sections 9.4(a) and 9.4(b), any dividend or distribution to which this Section 9.4(d) is applicable that also includes shares of Common Stock, shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock (and any Conversion Rate adjustment required by this Section 9.4(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 (and any further Conversion Rate adjustment required by Section 9.4(a) or 9.4(b) with respect to such dividend or distribution shall then be made.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any Permitted Special Dividend, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary and (z) any dividend or distribution in connection with a merger, consolidation or sale to which Section 9.5 applies), in an amount per share of Common Stock that exceeds of $0.15 per share of Common Stock in any fiscal quarter (the “Quarterly Dividend Amount”) then the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the “ex” date for such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price of Common Stock on the “ex” date for the distribution; and
(ii) the denominator of which shall be the Current Market Price of Common Stock on the “ex” date for the distribution less the amount of the cash dividend or distribution applicable to one share of Common Stock in excess of the Quarterly Dividend Amount and for which an adjustment has not already been made pursuant to this provision, such adjustment to be effective immediately after the opening of business on the “ex” date for such distribution; provided that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the “ex” date for the distribution or such Current Market Price exceeds such portion by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall may be made so that each Holder holder of Notes shall have the right to receive upon conversion for each $1,000 principal amount of a Note (or any portion thereof) Notes, the amount of securities so distributed (other than excluded securities) cash such Holder holder would have received had such Holder converted holder owned a number of shares equal to the Conversion Rate on the record date for such Note (dividend or portion thereof) immediately prior distribution, in addition to the shares of Common Stock to which such Record Dateholder is entitled upon conversion. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. If The Quarterly Dividend Amount is subject to inversely proportional adjustment as and when the Conversion Rate is adjusted pursuant to Sections 9.4(a) and (b).
(f) In case a tender or exchange offer made by the Company or any subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (which, if other than cash, shall be as determined in good faith by the Board of Directors determines Directors) that as of the fair market value of any distribution for purposes of this paragraph 7(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 last time (the “Reference PeriodExpiration Time”) used in computing the Current Market Price tenders or exchanges may be made pursuant to paragraph 7(gsuch tender or exchange offer (as it may be amended) to exceeds the extent possible, unless the Board Closing Sale Price 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination share of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 Trading Day next succeeding the meaning of paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such dateExpiration Time, the Conversion Rate shall be increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:,
(1i) the numerator of which shall be the sum of (x) the fair market value Fair Market Value (determined as aforesaid) of the aggregate consideration payable paid to stockholders based on the acceptance (up to any maximum specified for all shares accepted for purchase 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 offer (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Closing Sale Price of the a share of Common Stock on the Trading Day next succeeding the Expiration Time, and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged sharesPurchased Shares) at the Expiration Time multiplied by the Closing Sale Price of the a share of Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall , such adjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that If the Company is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all any such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)the shares not purchased.
(g) For purposes of this paragraph 7Section 9.4, the following terms shall have the meanings meaning indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fractionfraction of which:
(1i) the numerator of which shall be the sum of (1) the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 11.05(g)) fixed for such determination and (2) the total number of shares of Common Stock constituting such dividend or other distribution, distribution ; and
(2ii) The the denominator of which shall be the sum of such number of shares. Such shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 11.05(g)) fixed for such determination, such increase shall to become effective immediately after the opening of business on the day following the Record Date. If any the dividend or distribution of the type described in this paragraph 7(aSection 11.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case If the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case and, conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision increase or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increasereduction, 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 If the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase purchase, for a period expiring within 45 days after the date of issuance, 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 (as defined in Section 11.05(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted increased so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at immediately prior to the opening close of business on the date after such Record Date by a fractionfraction of which:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the such 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), purchase; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the such Record Date plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate Conversion Price of the convertible securities so offered) would purchase at such Current Market Price. Such , 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 warrants, the Conversion Rate shall be readjusted to be the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 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 by the Company for such rights or warrants, and any amount payable upon exercise thereof, with the value of such consideration consideration, if other than cash, to be determined by the Board of Directors (whose determination shall be conclusive and described in a resolution of the Board of Directors).
(d) In case If the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock Capital Stock of the Company (other than any dividends or distributions to which paragraph 7(aSection 11.05(a) applies) or evidences of its indebtedness or other assets, assets (including securities, but excluding (1i) any rights or warrants of a type referred to in paragraph 7(cSection 11.05(c) and (3ii) dividends and distributions paid exclusively in cash referred to in paragraph 7(eSection 11.05(e)) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 11.05(d) called the “excluded securities”"Securities"), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the such Record Date (as defined in Section 11.05(g)) with respect to such distribution by a fractionfraction of which:
(1i) The the numerator of which shall be such Current Market Price, Price on such Record Date; and
(2ii) The the denominator of which shall be the Current Market Price (determined as provided in Section 11.05(g)) on such date, Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth described in a resolution of the Board Resolution) of Directors), on Such date such Record Date of the portion of the securities or other assets Securities 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). Such Stock, such increase shall to become effective immediately prior to after the opening of business on the day following the Record Date. However; provided, however, that in the event that the then fair market value (as so determined) of the portion of the securities 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) 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 If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 paragraph 7(dSection 11.05(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)distribution, 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 paragraph 7(gSection 11.05(g) to the extent possible. Notwithstanding the foregoing, unless if 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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 distributed to all holders of its the Company's Common StockStock consist of shares of Capital Stock of, cash (excluding any cash that is distributed as part or similar equity interests in, a subsidiary or other business unit of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such dateCompany, the Conversion Rate shall be increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to on the close of business on such Record Date with respect to such distribution by a fractionfraction of which:
(i) The the numerator shall be the sum of (A) the average of the closing prices of the Common Stock for the ten (10) trading days commencing on and including the fifth trading day after the date on which "ex-dividend trading" commences for such distribution on the New York Stock Exchange or such other national or regional exchange or market on which such securities are then listed or quoted (the "Ex-Dividend Date") plus (B) the fair market value of such distribution in respect of each share of Common Stock for which this Section 11.05(d) applies, which shall be equal to the Current Market Price number of such securities distributed in respect of each share of Common Stock multiplied by the average of the closing prices of those securities distributed for the ten (10) trading days commencing on such Record and including the fifth trading day after the Ex-Dividend Date, ; and
(ii) the denominator of which shall be equal the average of the closing prices of the Common Stock for the ten (10) trading days commencing on and including the fifth trading day after the Ex-Dividend Date, such increase to become effective immediately after the Current Market Price opening of business 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 day following the Record Date; provided, however, that the Company may in lieu of the foregoing adjustment, make adequate provision so that each Holder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of 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 If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(f) In case . Rights or warrants distributed by the Company or any of its Subsidiaries pays to all holders of the 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) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares future issuances of Common Stock Stock, shall be deemed not to the extent that the cash have been distributed for purposes of this Section 11.05(d) (and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant no adjustment to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if anyunder this Section 11.05(d) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:be
Appears in 1 contract
Samples: Indenture (Delta Air Lines Inc /De/)
Adjustment of Conversion Rate. The Conversion Rate applicable to any series of Securities shall be subject to adjustments, calculated by the Company, from time to time adjustment as follows:
(a) In case the Company shall hereafter (i) pay a dividend dividend, or make a distribution to all holders of the outstanding Common Stock distribution, in shares of Common Stock, on the Common Stock, (ii) subdivide the Outstanding Common Stock into a greater number of shares, (iii) combine the Outstanding Common Stock into a smaller number of shares, or (iv) reclassify the Common Stock, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any Security thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of 36 42 shares of Common Stock outstanding at which such Holder would have owned or have been entitled to receive after the close happening of business on any of the Record Date fixed for events described above had such determination and Security been converted immediately prior to the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Dateevent. If any dividend or distribution of the type described in this paragraph 7(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. An adjustment made pursuant to this Section 11.4(a) shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of subdivision, combination or reclassification.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 rights, options or warrants to all holders of any class or series of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of not more than 60 daysstockholders entitled to receive such rights, options or warrants) 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 Average Closing Market Price on at the Record Date fixed record date for the determination of stockholders entitled to receive such rights rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price Conversion Rate determined by multiplying the Conversion Rate in effect at the opening of business on immediately prior to the date after of the issuance of such Record Date rights, options or warrants by a fraction:
(1) fraction of which the numerator of which shall be the number of shares of Common Stock outstanding on the close date of business on the Record Date issuance of such rights, options or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into purchase, and of which the convertible securities so offered are convertible), and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date date of issuance of such rights, options or warrants 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 Average Closing Market Price. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date fixed record date for the determination of the 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 after the expiration of such rights rights, options or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Average Closing Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights rights, options or warrants, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(dc) 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 receive, upon conversion of a Note (or any portion thereof) such Holder's Securities, the amount of securities so distributed (other than excluded securities) Distributed Securities such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to Securities on such Record Daterecord date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(dSection 11.4(c) 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 such Average Closing Market Price. Notwithstanding the Current Market Price pursuant to paragraph 7(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 foregoing provisions of this paragraph 7(d) and paragraphs 7(aSection 11.4(c), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made thereunder for any distribution of Distributed Securities if the Company makes proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after such record date for such tender offer distribution shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the amount and kind of Distributed Securities that such Holder would have been entitled to receive if such Holder had, immediately prior to such record date, converted such Security for Common Stock; provided that, with respect to any Distributed Securities that are convertible, exchangeable or exchange offer exercisable, the foregoing provision shall only apply to the extent (and so long as) the Distributed Securities receivable upon conversion of such Security would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Security. In the event the Company implements a stockholder rights plan, such rights plan shall provide that upon conversion of the Securities the Holders shall receive, in addition to the Common Stock issuable upon such conversion, the rights issued under this paragraph 7(fsuch rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:by the Corporation if any of the following events or transactions occurs; provided, however, that no adjustment to the Conversion Rate need be made for a given transaction or event if the terms set forth in Section 2.6 of the Agreement are in effect.
(a) In case If the Company shall hereafter pay a Corporation declares any cash dividend or make a distribution to all all, or substantially all, holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased based on the following formula: CR = CR0 x ———— SP0 - C where, CR0 = the Conversion Rate in effect at immediately prior to the opening close of business on the record date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such (the “Record Date”); CR = the Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at in effect immediately after the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
; SP0 = the closing sale price (2“Closing Sale Price”) The denominator of which shall be the sum Common Stock on the trading day immediately preceding the ex-dividend date for such dividend or distribution (the “Ex-Dividend Date”); and C = the amount in cash per share the Corporation distributes to all or substantially all holders of such number of sharesthe Common Stock. Such Any increase pursuant to this Section 1.3(a) shall become effective immediately after the opening close of business on the day following Record Date for such dividend or distribution. No adjustment pursuant to the Record Dateabove formula shall result in a decrease of the Conversion Rate. If However, if any dividend or distribution of the type described set forth in this paragraph 7(aSection 1.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted, effective as of the date the Board of Directors of the Corporation (the “Board of Directors”) determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, without having to convert its Note, the amount of cash that the Purchaser would have received if the Purchaser owned a number of shares of Common Stock equal to the Conversion Rate which on the Record Date for such cash dividend or distribution.
(b) If the Corporation issues solely shares of Common Stock as a dividend or distribution on all or substantially all of the shares of the Common Stock, or if the Corporation subdivides or combines its Common Stock, the Conversion Rate shall be adjusted based on the following formula: OS CR = CR0 x —— OS0 where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be (such date, the “Effective Date”); CR = the Conversion Rate in effect immediately after the close of business on the Record 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 close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the Effective Date of such subdivision or combination of Common Stock, as the case may be; and OS = the number of shares of Common Stock that would be outstanding immediately after giving effect to such dividend or distribution, or immediately after the Effective Date of such share split or share combination, as applicable. Any adjustment made under this Section 1.3(b) shall become effective immediately after the close of business on the Record 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. If such dividend or distribution of the type described in this Section 1.3(b) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(bc) In case If the outstanding shares of Common Stock shall be subdivided into Corporation declares a greater number distribution of shares of Common Stock (commonly referred to as a “forward split”)its Capital Stock, evidences of its indebtedness, other assets or property of the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision Corporation or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may beother securities, to become effective immediately after the opening of business on the day following the day upon which such subdivision all or combination becomes effective.
(c) In case the Company shall issue rights or warrants to substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into the Common Stock, excluding (i) at a price per share (dividends or having a Conversion Price per share) less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled distributions paid exclusively in cash as to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. Such an 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 was effected pursuant to such rights Section 1.3(a) and (ii) dividends or warrants, upon the expiration or termination of such rights or warrants the Conversion Rate shall be readjusted distributions as to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock an adjustment was effected pursuant to Section 1.3(b) (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness indebtedness, other assets or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the a “excluded securitiesRelevant Distribution”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), then the Conversion Rate shall be adjusted so that increased based on the same shall be equal to the price determined by multiplying following formula: CR = CR0 x ————— SP0 - FMV where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to for such distribution by a fraction:
(1) The numerator distribution; CR = the Conversion Rate in effect immediately after the close of which shall be business on the Record Date for such Current Market Pricedistribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive trading day period ending on, and
(2) The denominator of which shall be and including, the Current Market Price on trading day immediately preceding the Ex-Dividend Date for such date, less distribution; and FMV = the fair market value (as determined in good faith 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 Relevant Distribution distributed (other than excluded securities) applicable with respect to one each outstanding share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding as of the close of business on the Record Date)Ex-Dividend Date for such distribution. Such Any increase made under the portion of this Section 1.3(c) above shall become effective immediately prior to after the opening close of business on the day following Record Date for such distribution. No adjustment pursuant to the Record Dateabove formula will result in a decrease of the Conversion Rate. 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) if 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 Rate shall again be adjusted decreased, as of the date the Board of Directors determines not to pay or make such distribution, to be the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to convert its Note, the amount and kind of such Relevant Distribution that the Purchaser would have received if the Purchaser owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. If the Board of Directors determines the fair market value “FMV” (as defined above) of any distribution for purposes of this paragraph 7(dSection 1.3(c) by reference to the actual or when when-issued trading market for any securities comprising all or part of such distribution (other than excluded securities), it must shall 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 paragraph 7(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 closing sale prices of the HolderCommon Stock over the 10 consecutive trading day period ending on, and including, the trading day immediately preceding the Ex-Dividend Date for such distribution. For purposes of this paragraph 7(dSection 1.3(b) and paragraphs 7(aSection 1.3(c), 7(b) and 7(c), if any dividend or distribution to which this paragraph 7(dSection 1.3(c) is applicable that also includes a dividend or distribution of shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(bSection 1.3(b) appliesis applicable (a “Clause B Distribution”), then (1) such dividend or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(c) applies (or any combination thereof)distribution, other than the Clause B Distribution, shall be deemed instead to be:
(1) be 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 paragraphs 7(athis Section 1.3(c) is applicable (a “Clause C Distribution”), 7(b) and7(c) apply, respectively (and any Conversion Rate increase adjustment required by this paragraph 7(dSection 1.3(c) with respect to such dividend or distribution Clause C Distribution shall then be made), immediately followed by
and (2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (the Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any further Conversion Rate increase adjustment required by paragraphs 7(a), 7(b) and 7(cSection 1.3(b) with respect to such dividend or distribution thereto shall then be made), except:
except that, if determined by the Corporation (AI) the “Record Date” of the Clause B Distribution shall be deemed to be 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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), Clause C Distribution 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 paragraph 7(c), and
(BII) any shares of Common Stock included in such dividend or distribution the Clause B Distribution shall not be deemed not to be “outstanding at the close of business on the date fixed for such determination” within the meaning of paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date” within the meaning of Section 1.3(b). In addition, notwithstanding the event that such foregoing, if the Corporation declares a dividend or distribution is not so paid or madeconsisting of a combination of cash and a Clause B Distribution, then the Conversion Rate shall again be adjusted increased: (i) as to the cash portion, according to Section 1.3(a); and (ii) as to the Clause B Distribution portion, according to the greater of the values calculated (x) pursuant to Section 1.3(a) as if the Clause b Distribution portion were to be paid in cash, or (y) pursuant to Section 1.3(b). If the Corporation declares a dividend or distribution where shareholders of the Common Stock have the option of receiving such dividend or distribution, in whole or in part, in the form of either cash or a Clause B Distribution, then the Conversion Rate which would then shall be in effect if such increased: (i) as to the portion of the aggregate dividend or distribution had not been declaredtaken as cash by the shareholders of the Common Stock, according to Section 1.3(a); and (ii) as to the portion of the aggregate dividend or distribution taken as a Clause B Distribution by the shareholders of the Common Stock, according to the greater of the values calculated (x) pursuant to Section 1.3(a) as if such aggregate Clause B Distribution portion were to be paid in cash, or (y) pursuant to Section 1.3(b).
(fd) In case If the Company Corporation or any of its Subsidiaries pays holders of the Common Stock subsidiaries makes a payment in respect of a tender offer or exchange offeroffer for the Common Stock, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that and if the cash and fair market value of any other consideration included in the payment per share of the Common Stock exceeds the Sale Price per share average of the closing sale prices of the Common Stock on over the Trading Day 10 consecutive trading day period commencing on, and including, the trading day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration TimeDate”), then, and in each such case, the Conversion Rate shall be adjusted so that increased based on the same shall equal the price determined by multiplying following formula: OS0 x SP where, CR0 = the Conversion Rate in effect immediately prior to close the open of business on the date of trading day next succeeding the Expiration Time by a fraction:
(1) Date; CR = the numerator Conversion Rate in effect immediately after the open of which shall be business on the sum of (x) trading day next succeeding the fair market value (determined as aforesaid) of Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable to stockholders based on the acceptance (up to any maximum specified for shares of Common Stock purchased in the terms of the such 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 maximum, being referred to as the “Purchased Shares”) and (y) the product of ; OS0 = the number of shares of Common Stock outstanding immediately prior to the time (less any Purchased Sharesthe “Expiration Time”) at such tender or exchange offer expires (prior to giving effect to the Expiration Time and the Sale Price purchase of the all shares of Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be accepted for purchase or exchange in such tender or exchange offer); OS = the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at immediately after the Expiration Time multiplied by (after giving effect to the Sale Price purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and SP = the average of the closing sale prices of the Common Stock over the 10 consecutive trading day period commencing on, and including, the trading day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this Section 1.3(d) shall be determined at the close of business on the Trading Day 10th trading day immediately following, but excluding, the Expiration Date, but will be given effect at the open of business on the trading day next succeeding the Expiration TimeDate. Such In respect of any conversion of Notes during the 10 trading days commencing on the trading day next succeeding the Expiration Date, references in this Section 1.3(d) with respect to 10 trading days shall be deemed replaced with such lesser number of trading days as have elapsed from, and including, the trading day next succeeding the Expiration Date to, but excluding, the Conversion Date in determining the Conversion Rate. No adjustment pursuant to the above formula shall result in a decrease to the Conversion Rate.
(e) Except as stated herein, the Corporation shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.
(f) In addition to those adjustments required by clauses (a), (b), (c), and (d) of this Section 1.3 and Section 1.12, and to the extent permitted by applicable law and applicable listing rules of the Nasdaq Global Select Market and any other securities exchange on which the Corporation’s securities are then listed, (i) the Corporation from time to time may increase the Conversion Rate by any amount for a period of at least twenty (if any20) business days as long as such increase is irrevocable during such period and the Board of Directors determines that such increase would be in the Corporation’s best interest and (ii) the Corporation may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar events. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Corporation shall become effective immediately mail to the Purchaser of each Note at its last address provided in the Agreement a notice of the increase at least 15 days prior to the opening of business on date the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 increased Conversion Rate takes effect, and such notice shall again be adjusted to be state the increased Conversion Rate and the period during which would then it will be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)effect.
(g) All calculations and other determinations under this Section 1 shall be made by the Corporation and shall be made to the nearest one-ten thousandth (1/10,000th) of a share.
(h) Whenever the Conversion Rate is adjusted as herein provided, the Corporation shall promptly, but in no event later than two (2) business days following such event, deliver to the Purchaser an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a responsible officer of the Purchaser shall have received such Officers’ Certificate, the Purchaser shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Corporation shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Purchaser at its last address. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(i) For purposes of this paragraph 7Section 1.3, the following terms number of shares of Common Stock at any time outstanding shall have not include shares of Common Stock held in the meanings indicated:treasury of the Corporation so long as the Corporation does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Corporation, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Issuer as follows, except that the Issuer shall not make any adjustments to the Conversion Rate if Noteholders participate (based on the Conversion Rate then in effect), as a result of holding the Notes, in any of the transactions described below without having to convert the Notes:
(a) In case If the Company Issuer shall hereafter pay exclusively issue Common Stock as a dividend or make a distribution to all holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock in or combination into a lower number of shares of Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at immediately prior to the opening of business on the date following the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying distribution, or the effective date of such subdivision or combination, as applicable; CR’ = the Conversion Rate by a fraction:
(1) in effect immediately after the numerator Ex-Dividend Date for such dividend or distribution, or the effective date of which shall be the sum of such subdivision or combination, as applicable; OS0 = the number of shares of Common Stock outstanding at immediately prior to the close of business on the Record Ex-Dividend Date fixed for such determination dividend or distribution, or the effective date of such subdivision or combination, as applicable; and OS’ = the total number of shares constituting of Common Stock outstanding immediately after the Ex-Dividend Date for such dividend or other distribution, and
(2) The denominator of which shall be or the sum effective date of such number of sharessubdivision or combination, as applicable. Such increase adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record DateEx-Dividend Date for such dividend or distribution for such dividend or distribution, or the effective date of such subdivision or combination, as applicable. If any dividend or distribution of the type described in this paragraph 7(aSection 7.03(a) is declared but not so paid or made, or the outstanding Common Stock is not subdivided or combined, as the case may be, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate which that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) In case If the Issuer shall issue to all holders of its outstanding shares of Common Stock rights, warrants or convertible securities entitling them (for a period expiring within 60 calendar days after the issuance thereof) to purchase Common Stock at a price per share less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be subdivided into a greater adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such issuance; OS0 = the number of shares Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuance; X = the total number of shares of Common Stock (commonly referred issuable pursuant to as a “forward split”)such rights, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, warrants or convertible securities; and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be Y = the number of shares of Common Stock outstanding immediately after giving effect equal to the aggregate price payable to exercise such subdivision rights, warrants or combination and convertible securities divided by the denominator average of which shall be the number of shares Closing Sale Prices of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as over the case may be, to become effective immediately after the opening of business 10 consecutive Trading Day period ending 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on Business Day immediately preceding the Record Date fixed (or, if earlier, the Ex-Dividend Date) for the determination issuance of stockholders entitled to receive such rights rights, warrants or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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 Pricesecurities. Such adjustment shall be successively made whenever any such rights, warrants or convertible securities are issued and shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Date fixed for determination of stockholders entitled to receive (or, if earlier, the Ex-Dividend Date). If such rights rights, warrants or warrants. To the extent that shares of Common Stock (or convertible 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 issuedexercised prior to their expiration, the Conversion Rate shall again be adjusted to be the Conversion Rate which that would then be in effect if such date fixed Record Date for the determination of stockholders entitled to receive such rights or warrants issuance had not been fixed. In determining whether any rights rights, warrants or warrants convertible securities entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Closing Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Issuer for such rights rights, warrants or warrantsconvertible securities and any amount payable on exercise or conversion thereof, the value of such consideration consideration, if other than cash, to be determined by the Board of Directors.
(dc) In case If the Company Issuer shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of Stock, capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness or other assets, of its assets or property (including securitiescash and any combination of the foregoing, but excluding (1dividends, distributions, rights and warrants covered by Section 7.03(a), Section 7.03(b) any rights or warrants referred to in paragraph 7(cSection 7.03(d) and distributions described below in this paragraph (3c) dividends and distributions paid exclusively in cash referred with respect to in paragraph 7(eSpin-Offs) (the securities described in foregoing clauses (1)and (2) any of such shares of beneficial interest, indebtedness, or other asset or property hereinafter in this paragraph 7(dSection 7.03(c) called the “excluded securitiesDistributed Property”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), case the Conversion Rate shall be adjusted so that based on the same shall be equal to the price determined by multiplying following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the average of business the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Business Day immediately preceding the Record Date with respect to for such distribution by a fraction:
(1) The numerator of which shall be such Current Market Priceor, and
(2) The denominator of which shall be if earlier, the Current Market Price on such date, less Ex-Dividend Date); and FMV = the fair market value (as determined in good faith 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 Property distributed (other than excluded securities) applicable with respect to one each outstanding share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date for such distribution (or, if earlier, the Ex-Dividend Date). Such increase adjustment shall become effective immediately prior to the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Date (or, if earlier, the Ex-Dividend Date. However, in the event ); provided that if the then fair market value (as so determined) of the portion of the securities Distributed Property 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 DateSP0 as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder Noteholder shall have the right to receive receive, for each $1,000 principal amount of Notes upon conversion of a Note (or any portion thereof) conversion, the amount of securities so distributed (other than excluded securities) Distributed Property such Holder Noteholder would have received had such Holder converted such Note (or portion thereof) immediately prior Noteholder owned a number of shares of Common Stock equal to such the Conversion Rate on the Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which that 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 paragraph 7(dSection 7.03(c) by reference to the actual or when 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 determining SP0 above. With respect to an adjustment pursuant to this Section 7.03(c) where there has been a payment of a dividend or other distribution on the Common Stock of the Issuer, or on any class or series of stock of or similar equity interest in or relating to a Subsidiary or other business unit thereof (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of shareholders entitled to receive the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the effective date of this adjustment; CR’ = the Conversion Rate in effect immediately after the effective date of this adjustment; FMV0 = the average of the Closing Sale Prices of capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Day period after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of Common Stock over the first 10 consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off; provided that in respect of any conversion within the 10 Trading Days following the effective date of any Spin-Off, references within this paragraph 7(g(c) to “10 consecutive Trading Day” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Conversion Date in determining the applicable Conversion Rate. Rights or warrants distributed by the Issuer to all holders of Common Stock, entitling the holders thereof to subscribe for or purchase shares of the Issuer’s equity interests, including Common Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such 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 7.03(c) (and no adjustment to the Conversion Rate under this Section 7.03(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the extent possibleConversion Rate shall be made under this Section 7.03(c). If any such right or warrant, unless including any such existing rights or warrants distributed prior to the Board date of Directors in this Ninth Supplemental 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 Board Resolution determines in good faith that determining termination or expiration of the fair market value during existing rights or warrants without exercise by any of the Reference Period would not be holders thereof). In addition, in the best interests event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the Holdertype described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 7.03 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate 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 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 redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this paragraph 7(dSection 7.03(c), Section 7.03(a) and paragraphs 7(a), 7(b) and 7(cSection 7.03(b), any dividend or distribution to which this paragraph 7(dSection 7.03(c) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(bSection 7.03(a) applies, applies or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(cSection 7.03(b) applies (or any combination thereofboth), shall be deemed instead to be:
be (1) a dividend or distribution of the evidences of indebtedness, assets, assets or shares of capital stock, equity interests other than such Common Stock or rights or warrants other than to which Section 7.03(c) applies (and any Conversion Rate adjustment required by this Section 7.03(c) with respect to such shares dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such Common Stock, such subdivision or combination Stock or such rights or warrants to which paragraphs 7(a), 7(b) and7(c) apply, respectively (and any further Conversion Rate increase adjustment required by this paragraph 7(dSection 7.03(a) and Section 7.03(b) 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 Rate increase required by paragraphs 7(a), 7(b) and 7(c) with respect to such dividend or distribution shall then be made), except:
except (A) the Record Date of such dividend or distribution shall be substituted as (x) “the Record Date” and “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Datedetermination” within the meaning of paragraph 7(a), (ySection 7.03(a) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(b), Section 7.03(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 paragraph 7(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 immediately prior to such determinationevent” within the meaning of paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distributionSection 7.03(a).
(ed) In case If the Company shall, by Issuer shall pay a dividend or otherwise, distribute make a distribution consisting exclusively of cash to all holders of its Common Stock, Stock to the extent that the aggregate of all such cash dividends or distributions paid in any calendar quarter (excluding any including such cash that is distributed as part of a distribution referred to in paragraph 7(ddividend or distributions) hereof), then and in each exceeds the Dividend Threshold Amount for such case, immediately after the close of business on such datequarter, the Conversion Rate shall be increased so that adjusted based on the same shall equal the price determined by multiplying following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on for such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying distribution; CR’ = the Conversion Rate in effect immediately prior to close after the Record Date for such distribution; SP0 = the average of business the Closing Sale Prices of the Common Stock over the period of 10 consecutive Trading Days ending on the date Business Day immediately preceding the Record Date for such distribution (or, if earlier, the Ex-Dividend Date relating to such distribution); T = the dividend threshold amount (“Dividend Threshold Amount”), which amount shall initially be $0.375 per share of the Expiration Time by a fraction:
(1) the numerator of Common Stock and which shall be appropriately adjusted from time to time for any share dividends on, or subdivisions or combinations of, or any merger, consolidation, reclassification of or other transactions relating to, 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 Common Stock 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 maximum, being referred to as the “Purchased Shares”) and (y) the product of each case where the number of outstanding shares of Common Stock outstanding (less any Purchased Shares) at increases or decreases, or is exchanged or converted into a greater or lesser number of securities; provided that if a Conversion Rate adjustment is required to be made as a result of a distribution that is not a quarterly dividend either in whole or in part, the Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which Dividend Threshold Amount shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted deemed to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:zero; and
Appears in 1 contract
Samples: Ninth Supplemental Indenture (National Retail Properties, Inc.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay issue Common Shares as a dividend or make a distribution to all holders of the outstanding Common Stock in shares Stock, or shall effect a subdivision into a greater number of Common StockShares or combination into a lesser number of Common Shares, the Conversion Rate shall be adjusted based on the following formula: CR’ = CR0 x OS’OS0 where CR0 = the Conversion Rate in effect at immediately prior to the opening of business on the date following the date fixed Ex-Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying or the effective date of such share split or combination, as the case may be; CR’ = the Conversion Rate by a fraction:
(1) in effect as of the numerator Ex-Date for such dividend or distribution or the effective date of which shall be such share split or combination, as the sum of case may be; OS0 = the number of shares Common Shares outstanding immediately prior to such event; and OS’ = the number of Common Stock Shares outstanding at the close of business on the Record Date fixed for immediately after such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of sharesevent. Such increase adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Daterecord date fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 8.04(a) is declared but not so paid or made, or the outstanding Common Shares are not subdivided or combined, as the case may be, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Trustees determines not to pay such dividend or distribution, or subdivide or combine the outstanding Common Shares, as the case may be, to the Conversion Rate which that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 to all or warrants to substantially all holders of its outstanding shares of Common Stock Shares any rights, warrants or convertible securities entitling them (for a period of not more than 60 daysexpiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) Shares at a price per share (or having a Conversion Price per share) less than the Current Market Last Reported Sale Price of the Common Shares on the Record Date fixed for Business Day immediately preceding the determination date of stockholders entitled to receive announcement of such rights or warrantsissuance, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect at the opening of business based 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying formula: CR’ = CR0 x OS0 + X OS0 + Y where CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Ex-Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying ; CR’ = the Conversion Rate in effect as of the Ex-Date for such distribution; OS0 = the number of Common Shares outstanding immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:event;
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such the Conversion Rate in effect at the close of business on such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the sum total number of shares that would be outstanding immediately following such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting determination, such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall reduction to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 12.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case If the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case and, conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 If the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) for a period expiring 45 days or less from the date of issuance of such rights or warrants at a price per share (or having a Conversion Price conversion price per share) less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening close of business on the date after such Record Date by a fraction:
(1) fraction of which the numerator of which shall be the sum of the number of shares of Common Stock outstanding on at 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), and
(2) and of which the denominator of which shall be the sum of 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 conversion price of the convertible securities so offeredoffered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible 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 as of the business day immediately preceding the announcement of the issuance of such rights. 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 Rate shall be readjusted to be the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date Record 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, with the value of such consideration consideration, if other than cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors.
(d) In case If 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 paragraph 7(aSection 12.05(a) applies) or evidences of its indebtedness indebtedness, cash or other assets, assets (including securities, but excluding (1i) any rights or warrants of a type referred to in paragraph 7(cSection 12.05(c) and (3ii) dividends and distributions paid exclusively in cash referred pursuant to in paragraph 7(eSection 12.05(e)) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(dSection 12.05(d) called the “excluded securities”"Distributed Securities"), thenthen (unless the Company distributes such Distributed Securities for distribution to the holders of Notes on such dividend or distribution date (as if each Holder had converted such Note into Common Stock immediately prior to the record date with respect to such distribution)), in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted increased so that the same shall be equal to the price rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator fraction of which shall be such Current Market Price, and
(2) The denominator of which the numerator shall be the Current Market Price on such date, date and the denominator shall be such Current Market Price less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth described in a resolution of the Board Resolutionof Directors) on Such such date of the portion of the securities or other assets so distributed (other than excluded securities) Distributed Securities applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at the close of business on the such Record Date). Such increase shall , such reduction to become effective immediately prior to the opening of business on the day following the Record Date. However; provided, however, that in the event that the then fair market value (as so determined) of the portion of the securities 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 holder of Notes 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) Distributed Securities such Holder holder would have received had such Holder holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(dSection 12.05(c) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution (other than excluded securities)distribution, 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 paragraph 7(gSection 12.05(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time by the Company as follows:
(a) In case If the Company shall hereafter (i) pay a dividend or make a distribution to all holders of the outstanding on its Common Stock in shares 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) issue by reclassification of its shares of Common Stock any shares of capital stock of the Company, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the date following the date fixed any 2020 Debenture thereafter surrendered for the determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the that number of shares of Common Stock outstanding at capital stock of the close of business on Company which it would have owned had such 2020 Debenture been converted immediately prior to the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum occurrence of such number of sharesevent. Such increase An adjustment made pursuant to this subsection (a) shall become effective immediately after the opening record date in the case of business on the day following the Record Date. If any a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassification (or immediately after the record date if a record date shall have been established for such event). If, as a result of an adjustment made pursuant to this Section 1506(a), the Holder of any 2020 Debenture thereafter surrendered for conversion shall be entitled to receive shares of two or more classes or series of capital stock of the type Company, the Board of Directors (whose determination shall be conclusive and shall be described in this paragraph 7(aa Board Resolution filed with the Trustee) is declared but not so paid or made, shall determine the allocation of the adjusted Conversion Rate shall again be adjusted to for the Conversion Rate which would then be in effect if 2020 Debentures between or among shares of such dividend classes or distribution had not been declaredseries of capital stock.
(b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 If the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of commencing no earlier than the record date described below and expiring not more than 60 days45 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 conversion price per share) less than the Current Market Price current market price per share of Common Stock (as determined in accordance with Section 1506(e)) on the Record Date fixed record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the price rate determined by multiplying the Conversion Rate in effect at the opening of business on the immediately prior to such record date after such Record Date by a fraction:
(1) , of which the numerator of which shall be the number of shares of Common Stock outstanding on the close date of business on the Record Date issuance of such rights or warrants 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), and
(2) and of which the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate Conversion Price conversion price of the convertible securities so offered) would purchase at such Current Market Price. 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 Rate which shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible 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 (or securities convertible into as determined in accordance with Section 1506(e)) of Common Stock) actually deliveredStock on such record date. In the event that Such adjustment shall be made successively whenever any such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase shall become effective immediately prior to after such record date. For 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution (other than excluded securitiesSection 1506(b), 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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination at any time outstanding shall be disregarded not include shares held 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 treasury of the cash distributed and (y) the number Company. The Company shall not issue any rights or warrants in respect of shares of Common Stock outstanding on held in the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders treasury of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by Company. If at the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date end of the Expiration Time by a fraction:
(1) the numerator of period during 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:rights
Appears in 1 contract
Samples: Second Supplemental Indenture (Weatherford International Inc /New/)
Adjustment of Conversion Rate. The Conversion Rate shall will be subject to adjustments, calculated by the Company, adjustments from time to time as follows:
(a1) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution Conversion Record Date shall be increased reduced by multiplying such Conversion Rate by a fraction:
: (1A) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date fixed for the determination of the holders entitled to such determination dividend or distribution; and (B) the denominator of which shall be the sum of such number of shares referred to in (A) above and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase reduction in the Conversion Rate shall become effective immediately after the opening of business on the day following the Conversion Record Date. If any dividend or distribution of the type described in this paragraph 7(aSection 3(e)(1) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that otherwise would then be in effect if such dividend or distribution had not been declared.
(b2) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock (commonly referred to as a “forward split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increasedreduced, and conversely, in case the outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”)Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reducedproportionately increased, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may beapplicable, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c3) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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.
(dA) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of capital stock Capital Stock of the Company (other than any dividends or distributions to which paragraph 7(aSection 3(e)(1) applies) or evidences of its indebtedness indebtedness, cash or other assets, including securities, but excluding dividends or distributions of stock, securities or other property or assets (1including cash) any rights in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or warrants referred conveyance to in paragraph 7(cwhich Section 3(f) and applies (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the such Capital Stock, evidences of its indebtedness, cash, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 3(e)(3) called the “excluded securitiesDistributed Assets”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Conversion Record Date with respect to such distribution by a fraction:
: (1i) The the numerator of which shall be such Current the Fair Market Price, and
(2) The denominator Value of which shall be the Current Market Price Common Stock of the Company on such date, date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolutionresolution) on Such such date of the portion of the securities or other assets Distributed 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 Conversion Record Date). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) ; and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator of which shall be equal to the Current such Fair 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders Value of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f)date.
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Convertible Security Agreement (Xenonics Holdings, Inc.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum of such number of shares. Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this paragraph 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution 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 (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior 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 holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 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 on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate 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 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), and
(2) the denominator 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. 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 Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any rights or warrants referred to in paragraph 7(c) and (3) dividends and distributions paid exclusively in cash referred to in paragraph 7(e) (the securities described in foregoing clauses (1)and 1) and (2) hereinafter in this paragraph 7(d) called the “excluded securities”), then, in each such case, subject to the second succeeding paragraph of this paragraph 7(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
Samples: Consulting Agreement
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments, calculated by the Company, adjusted from time to time as follows:
(a) In case the Company shall hereafter shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of the its outstanding Common Stock in shares of Common Stock, then the Conversion Rate in effect at immediately prior to the opening close of business on the date following the date Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) so that the numerator Holder of which any Note thereafter surrendered for conversion shall be the sum of the entitled to receive that number of shares of Common Stock outstanding at which it would have received had such Note been converted immediately prior to the close of business on the Record Date fixed for such determination and the total number of shares constituting such dividend or other distribution, and
(2) The denominator of which shall be the sum happening of such number event as well as such additional shares it would have received as a result of sharessuch event. Such increase shall become effective immediately after prior to the opening of business on the day following the Record DateDate fixed for such determination. If any dividend or distribution of the type described in this paragraph 7(aSection 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide its outstanding shares of Common Stock shall be subdivided into a greater number of Common Stock or combine its outstanding shares of Common Stock into a smaller number of Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall be adjusted so that the Holder of any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock (commonly referred to as a “forward split”), the Conversion Rate in effect at the opening of business on the day following the day upon which it would have received had such subdivision becomes effective shall be proportionately increased, and in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock (commonly referred to as a “reverse split”), the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be reduced, in each such case, by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock outstanding Note been converted immediately prior to the happening of such subdivision or combinationevent as well as such additional shares as it would have received as a result of such event. Such reduction or increase, as the case may be, to adjustment shall become effective immediately after prior to the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period of not more than 60 days) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price per share of Common Stock (or having a Conversion Price conversion, exchange or exercise price per shareshare of Common Stock) less than the Current Market Closing Sale Price of the Common Stock on the Record Date fixed Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the determination security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of stockholders entitled to receive or exchange or exercise for such rights security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or warrantsexercisable security), then the Conversion Rate shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date date of announcement by a fraction:
(1i) the numerator of which shall be the number of shares of Common Stock outstanding on at the close of business on the Record Date date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable), ; and
(2ii) the denominator of which shall be the number of shares of Common Stock outstanding at on the close of business on the Record Date date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate Conversion Price conversion, exchange or exercise price of the convertible convertible, exchangeable or exercisable securities so offered) would purchase at such Current Market PriceClosing Sale Price of the Common Stock. Such adjustment increase shall become effective immediately after prior to the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrantsdetermination. To the extent that shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such date the Record 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 Closing Sale 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.
(dA) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of any class Common Stock are not changed or exchanged), shares of its capital stock of the Company (other than any dividends or distributions to which paragraph 7(a) applies) or stock, evidences of its indebtedness Indebtedness or other assets, including securities, but excluding (1i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in paragraph 7(c) and Section 12.3(c), (3iii) dividends and distributions paid exclusively in cash referred to in paragraph 7(ethis Section 12.3(d) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities described in foregoing clauses (1)and (2) being distributed hereinafter in this paragraph 7(dSection 12.3(d) called the “excluded securitiesdistributed assets”), then, in each such case, subject to the second succeeding paragraph paragraphs (D) and (E) of this paragraph 7(dSection 12.3(d), the Conversion Rate shall be adjusted so that the same shall be equal to the price determined increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction:
(1) The numerator of which shall be such Current Market Price, and
(2) The denominator 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). Such increase 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 Rate shall again be adjusted to be the Conversion Rate 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 paragraph 7(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 paragraph 7(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 paragraph 7(d) and paragraphs 7(a), 7(b) and 7(c), any dividend or distribution to which this paragraph 7(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which paragraph 7(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) to which paragraph 7(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 paragraphs 7(a), 7(b) and7(c) apply, respectively (and any Conversion Rate increase required by this paragraph 7(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 Rate increase required by paragraphs 7(a), 7(b) and 7(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 paragraph 7(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of paragraph 7(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 paragraph 7(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 paragraph 7(a) and any increase or reduction 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 as part of a distribution referred to in paragraph 7(d) hereof), then and in each such case, immediately after the close of business on such date, the Conversion Rate shall be increased so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
(i) The numerator of which shall be equal to the Current Market Price on such Record Date, and
(ii) the denominator 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 the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(1) the numerator 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 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 Expiration Time and the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender 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 Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this paragraph 7(f) to any tender offer or exchange offer would result in an increase in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this paragraph 7(f).
(g) For purposes of this paragraph 7, the following terms shall have the meanings indicated:
Appears in 1 contract
