Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows: (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) 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 each 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. (4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. (5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"). (7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a) (8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution. (9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect. (11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 2 contracts
Samples: Indenture (Etoys Inc), Indenture (Etoys Inc)
Adjustment of Conversion Rate. (a) The Conversion Rate shall be subject to adjustments adjusted from time to time by the Company as follows:
(1i) In case If the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable Common Stock in shares of the Common Stock, the Conversion Rate Rate, as in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution distribution, 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2ii) In case If the Company shall issue rights, options or warrants to all holders of its Common Stock (such issuance not being available on an equivalent basis to holders of the Debentures upon conversion)
(1) options, warrants or other rights entitling them to subscribe for or purchase shares of Common Stock, or (2) securities convertible or exchangeable into shares of Common Stock options, warrants or other rights to purchase or acquire securities convertible or exchangeable into shares of Common Stock, in each case at a price per share of Common Stock less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock Current Market Price on the date fixed for the determination of stockholders entitled to receive such rightsoptions, options warrants or warrants other rights or securities (other than any rightspursuant to a dividend reinvestment, options share purchase or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredsimilar plan), 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 fraction, the numerator 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 consideration expected to be received by the Company upon the exercise, conversion or exchange of such options, warrants or other rights or securities (as determined in good faith by the offering price Board of the total number of shares of Common Stock so offered for subscription or purchase Directors, whose determination shall be conclusive and described in a Board Resolution) would purchase at such current market price Current Market Price and the denominator of which 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, either directly and indirectly, or into which such securities are convertible or exchangeable, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case If outstanding shares of Common Stock shall be subdivided subdivided, split, combined or reclassified 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 subdivision, split, combination or reclassification becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined or reclassified 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 or reclassification 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 subdivision, split, reclassification or combination becomes effective.
(4A) In case If 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, cash or other property assets (including cash or assets or securities, but excluding (i) any rightsissuance of options, options warrants or warrants other rights or securities referred to in paragraph (2ii) of this SECTION 11.4Section 15.05(a), (ii) any dividend or distribution paid exclusively in cashcash and any dividend, except as set forth shares of capital stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit in paragraphs (5) and (6) the case of this SECTION 11.4a Spin-Off referred to in the next subparagraph, (iii) any or dividend or distribution referred to in paragraph (1i) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 15.05(a)), the Conversion Rate shall be adjusted so that the same shall equal the rate determined increased by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock Current Market Price on the date fixed for such determination less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator of which shall be such current market price per share of the Common StockCurrent Market Price, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. In any case in which this clause (iv)(A) is applicable, clause (iv)(B) of this Section 15.05 shall not be applicable.
(5B) In the case of a Spin-Off, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of stockholders entitled to receive that distribution will be increased by multiplying the Conversion Rate by a fraction, the numerator of which is the Current Market Price plus the Fair Market Value of the portion of those shares of capital stock or similar equity interests so distributed applicable to one share of Common Stock and the denominator of which is the Current Market Price; provided that if the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made. Any adjustment to the Conversion Rate under this subclause (iv)(B) will occur at the earlier of (A) the tenth Trading Day from, and including, the effective date of the Spin-Off and (B) the date of the securities being offered in the Initial Public Offering of the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off.
(v) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon in a merger or consolidation Reorganization Event to which SECTION 11.11 appliesSection 15.05(b) applies or as part of a distribution referred to in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6iv) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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"Section 15.05(a)), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined increased by dividing 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 distribution by a fraction (iA) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock Current Market Price on the date fixed for such determination less an amount equal to the quotient of (x) the excess aggregate amount of such combined cash distributed to all holders of the Common Stock and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such the date fixed for such determination and (iiB) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of Current Market Price on the Common Stock on such date fixed for such determination.
(6vi) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value expire and such tender or exchange offer (as determined by amended through the Board expiration thereof) shall require the payment per share of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within exceeding the 365-day period preceding Last Reported Sale Price on the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) Trading Day next succeeding the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made last time (the "combined tender and cash amountExpiration Time") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of tenders could have been made pursuant to such tender or exchange offer (as amended through the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Dateexpiration thereof), then, and in each such case, immediately prior to the opening of business on the day after such Trading Day next succeeding the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined increased by dividing the Conversion Rate immediately prior to the close of business on such Trading Day next succeeding the Completion Date date of the Expiration Time by a fraction (iA) the numerator of which shall be equal to (Ax) the product of (I) the current market price per share Last Reported Sale Price on the Trading Day next succeeding the date of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date Trading Day next succeeding the date of the Expiration Time less (By) the combined amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders in such tender and cash amountor exchange offer (assuming the acceptance, up to any maximum specified in the terms of the tender or exchange offer, of Purchased Shares), and (iiB) the denominator of which shall be equal to the product of (Ax) the current market price per share Last Reported Sale Price on the Trading Day next succeeding the date of the Common Stock Expiration Time and (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any tendered shares) as on the Trading Day next succeeding the date of the Completion Date Expiration Time less the number of all shares validly tendered and tendered, not withdrawn as and accepted for payment on the date of the Completion Date(the shares deemed so accepted Expiration Time (such validly tendered shares, up to any such maximum, being referred to as the "Purchased Shares").
(7vii) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger All adjustments to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be calculated to the nearest 1/10,000th of a share of Common Stock (or if there is not a nearest 1/10,000th of a share to the next lower 1/10,000th of a share). No adjustment to the Conversion Rate will be required unless until the earlier of (1) such time as the Company provides notice to holders of the Debentures of the Company's intention to redeem the Debentures or (2) such time as the 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; PROVIDED1% of the Conversion Rate. If an adjustment is not made because the adjustment would not change the Conversion Rate by more than 1%, HOWEVER, then the adjustment that any adjustments which by reason of this paragraph (9) are is not required to be made shall will be carried forward and taken into account in any subsequent future 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.
(10viii) The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required or permitted by paragraphs (1), (2), (3), (4), (5) and (6) of this SECTION 11.4Section 15.05, as it the Board of Directors considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock shares (or issuance of rights or warrants to purchase or subscribe for Common Stock acquire shares) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount purposes or for any period of time if the period is at least twenty other reasons.
(20ix) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentenceadjusted in accordance with this Section 15.05, the Company shall give shall: (1) forthwith compute the Conversion Rate in accordance with this Section 15.05 and prepare and transmit to the Transfer Agent an Officer's Certificate setting forth the Conversion Rate, the method of calculation thereof in reasonable detail, and the facts requiring such adjustment and upon which such adjustment is based; and (2) as soon as practicable following the occurrence of an event that requires or permits an adjustment to the Conversion Rate pursuant to this Section 15.05 (or if the Company is not aware of such occurrence, as soon as practicable after becoming so aware), provide a written notice to the holders of Debentures of the increase occurrence of such event and a statement setting forth in reasonable detail the method by which the adjustment to the Holders Conversion Rate was determined and setting forth the adjusted Conversion Rate.
(x) To the extent that the Company adopts any future rights plan, holders of Securities Debentures will receive, upon conversion of Debentures, in addition to shares of the manner provided Common Stock, the rights under such future rights plan whether or not the rights have separated from shares of the Common Stock at the time of conversion and no adjustment to the Conversion Rate will be made in accordance with paragraph (iv) above or otherwise.
(b) In the event of:
(i) any consolidation or merger of the Company with or into another Person or of another Person with or into the Company; or
(ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety; or
(iii) any reclassification (other than a reclassification to which paragraph (iii) of Section 1.6 at least fifteen 15.05(a) applies), (15) days any such event, a "Reorganization Event"), each Debenture prior to such Reorganization Event shall, after such Reorganization Event, be converted into the right to receive the kind and amount of securities, cash and other property receivable in such Reorganization Event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (aReorganization Event) upon the issuance by a holder of a number of shares of Common Stock pursuant issuable upon conversion of such Debentures that (1) is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any present such Person, a "Constituent Person"), or future plan an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-Affiliates, and (2) has failed to exercise the rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the reinvestment purpose of dividendsthis Section 15.05 the kind and amount of securities, (b) because of cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a tender or exchange offer plurality of the character described non-electing shares). On the Conversion Date, the Conversion Rate then in Rule 13e-4(h)effect shall be applied to the value or amount on the Conversion Date of such securities, cash or other property. In the event of such a Reorganization Event, the Person formed by such consolidation, or merger or the Person which acquires the assets of the Company shall execute and deliver to the Transfer Agent an agreement supplement hereto providing that the holder of each Debenture that remains outstanding after the Reorganization Event (if any) shall have the rights provided by this Section 15.05. Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 15.05. The above provisions of this Section 15.05 shall similarly apply to successive Reorganization Events.
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive Common Shares 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 Common Shares represented by each ADS before and after each such adjustment.
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common StockShares, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by dividing multiplying such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock Shares outstanding at the close of business on the 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 distributiondistribution and the denominator shall be the number of Common Shares outstanding at the close of business on the date fixed for such determination, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock Shares 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 StockShares. The Company will shall not pay any dividend or make any distribution on shares of Common Stock Shares held in the treasury of the Company.
(2) In 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 shareholders entitled to receive such rights, warrants or options) to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of Common Stock Shares at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock Shares on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 multiplying such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock Shares 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 Shares 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 Shares outstanding at the close of business on the date fixed for such determination plus the number of shares Common Shares which the aggregate of the offering price of the total number of Common Stock Shares so offered for subscription or purchasepurchase would purchase at such current market price, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 Shares 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 StockShares. The Company will shall not issue any rights, options or warrants in respect of shares of Common Stock Shares held in the treasury of the Company.
(3) In case outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common StockShares, 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 each be combined into a smaller number of shares of Common StockShares, 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.
(4) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Shares evidences of its indebtednessIndebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any distribution in connection with any merger or consolidation to which SECTION 11.11 Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock Shares on the date fixed for such determination (the “Reference Date”) and the denominator shall be the current market price per share of the Common Shares on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common StockShares, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionReference Date.
(5) In case the Company shall, by dividend or otherwiseotherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock Shares cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) 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 Shares made exclusively in cash (and not included in clause (II) of this sentence) within the 365-day period 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 any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable all Excess Payments in respect of any tender or exchange offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock Shares concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section has been made (the "“combined cash and tender amount") ”), exceeds 10[ ]% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock Shares on the date for the determination of holders of shares of Common Stock Shares entitled to receive such distribution times the number of shares of Common Stock Shares outstanding on such date (the "“aggregate current market price"”), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders shareholders entitled to receive such distribution by a fraction (i) of which the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock Shares 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 Shares on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10[ ]% of such aggregate current market price divided by (y) the number of shares of Common Stock Shares outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock Shares shall be completed for expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders of Excess Payments in an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) amount that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded Shares expiring within the 365-day period 12 months preceding the completion 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 aggregate amount of any distributions cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's ’s Common Stock made exclusively in cash Shares within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section has been made (the "“combined tender and cash amount"”) exceeds 10[ ]% of the product of the current market price per share of the Common Stock Shares (determined as provided in paragraph (8) of this SECTION 11.4Section) as of the completion of last time (the “Expiration Time”) tenders or exchanges could have been made pursuant to such tender or exchange offer (the "Completion Date"as it may be amended) times the number of shares of Common Stock Shares outstanding (including any tendered or exchanged shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction of which (i) the numerator of which shall be equal to the product of (A) the current market price per share of the Common Shares (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 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 11.4Section) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock Shares outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock Shares into securities including other than Common Stock Shares (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Shares to all holders of Common Shares (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 (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of Common Shares outstanding immediately prior to such reclassification into the number of Common Shares 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 Shares entitling the holders thereof to subscribe for or purchase Common Shares, which rights or warrants (i) are deemed to be transferred with such Common Shares, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Shares, 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) or and (6) of this SECTION 11.4Section, the current market price per share of Common Stock Shares on any date shall be calculated by the Company and be deemed to be the average of the daily Average Sales Prices Per Share last reported sale price of the Common Shares on the Mexican Stock Exchange for the five 30 consecutive Trading Days selected by the Company commencing not more than 10 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 “‘ex’ date"”, when used with respect to any issuance or distribution, means the first date on which the Common Stock trades Shares trade 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 shall be 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; PROVIDEDprovided, HOWEVERhowever, 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, 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 11.4Section, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock Shares resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding 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 Indenture, each ADS represents six Common Shares. If the number of Common Shares represented by an ADS should change, whether in conjunction with one of the foregoing provisions of this SECTION 11.4adjustment events or otherwise, no adjustment of the Conversion Rate (as so changed) shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)adjusted proportionately.
Appears in 1 contract
Samples: Indenture (Homex Development Corp.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock (other than rights issued pursuant to the Rights Plan (as defined in paragraph (13) of this Section 12.4)) 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 SECTION 11.4Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), the Conversion Rate in effect at -77- 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 that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 subdivision or 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and Section, (iv) any consideration distributed in any merger or consolidation to which SECTION 11.11 Section 12.11 applies), and (v) any rights issued pursuant to the Rights Plan (as defined in paragraph (13) of this Section 12.4) except as specified in paragraph (13) of this Section 12.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) 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 (4) of this Section or cash distributed upon a merger or consolidation to which SECTION 11.11 Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section 12.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) as of the completion of last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (the "Completion Date"as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion DateExpiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date Expiration Time less the number of all shares validly tendered and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 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 12.4).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4Section 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 Average Sales Closing Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "exex date" 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 shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Extreme Networks Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable its Common Stock exclusively in shares of Common Stock, the Conversion Rate in effect at the opening of business on the 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 increased by dividing such Conversion Rate by adjusted so that a fraction of which the numerator Holder upon conversion shall be the entitled to receive that number of shares of Common Stock outstanding at the close of business on the date fixed for it would have been entitled to after such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting dividend or other distribution if it had converted its Security immediately prior to such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2b) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them 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 paragraph (8) of this SECTION 11.4Section 12.04(h)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 dividing 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 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 shares of Common Stock which the aggregate price of the total number of shares so offered for subscription or purchasewould purchase at the current market price per share (determined as provided in Section 12.04(h)), such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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 each 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.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, cash or assets or securities, but (excluding (i) any rights, warrants or options or warrants referred to in paragraph (2) of this SECTION 11.4Section 12.04(b), (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) cash and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 12.04(a)), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close earlier of business on the date fixed for such distribution or the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.04(h)) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), on the date of consideration payable such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the 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(k). 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(d).
(e) In case the Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock exclusively in cash, the Company shall, in all cases, at the time of such distribution, make a cash payment to the Holders of all outstanding Securities equal to the amount of cash such Holder would have received with respect to such distribution for all of any its Securities had such Holder converted its Securities into Common Stock immediately prior to the close of business on the date fixed for the determination of the stockholders of record entitled to such distribution.
(f) In case a successful tender or exchange offer, other tender offer than an odd lot offer, made by the Company or any Subsidiary for all or any portion of the Common Stock concluded within shall involve an aggregate consideration having a fair market value (as determined in good faith by the 365-day period preceding Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the completion of last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6as it may be amended) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") that exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.04(h)) as of the completion of such tender offer Common Stock outstanding (including any tendered shares) on the "Completion Date") Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to close of business on the Completion Date Expiration Time by a fraction of which (i) the numerator of which denominator shall be equal to (Ax) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) Section 12.04(h)) of this SECTION 11.4) the Common Stock on the Completion Date multiplied by (II) Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on at the Completion Date less Expiration Time minus (By) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current fair market price per share of the Common Stock value (determined as provided in paragraph (8) of this SECTION 11.4aforesaid) as of the Completion Date multiplied by aggregate consideration payable to stockholders based on the acceptance (B) up to any maximum specified in the number of shares of Common Stock outstanding (including any tendered shares) as terms of the Completion Date less the number tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted accepted, up to any such maximum, being referred to as the "“Purchased Shares").
”) and (7ii) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) the numerator shall be deemed to involve the product of (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5x) or (6) of this SECTION 11.4, the such current market price per share (determined in accordance with Section 12.04(h)) on the Trading Day next succeeding the Expiration Time times (y) such number of Common Stock outstanding shares at the Expiration Time less the number of Purchased Shares, such increase to become effective immediately prior to the opening of business on any date shall be calculated by the Company and be deemed to be the average of the daily Average Sales Prices Per Share 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 following 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 distributionExpiration Time.
(9g) No adjustment in In case the September 30, 2008 Trailing Twelve Month Net Income shall be less than $0.00, the Conversion Rate shall be 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; PROVIDEDincreased to 546.4481, HOWEVER, that any adjustments which by reason of this paragraph (9) are not required to be made number shall be carried forward and taken into account subject to adjustment from the date hereof as set forth 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.
clauses (10a) The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs through (1), (2), (3), (4), (5) and (6f) of this SECTION 11.4Section 12.04 (the “Operating Adjustment”); provided, as it considers to be advisable however, that no Operating Adjustment shall occur in order to avoid or diminish any income tax liability to any holders the event that the simple average of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe the daily Volume-Weighted Average Price for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, five Business Days immediately preceding the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days Operating Adjustment Determination Date and the Board of Directors five succeeding Business Days commencing on the Operating Adjustment Determination Date shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen exceed one hundred twenty-five percent (15125%) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate Price. The Operating Adjustment shall be required to be made (a) upon effective, if at all, on the issuance of shares of Common Stock pursuant to any present or future plan for tenth business day following the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)Operating Adjustment Determination Date.
Appears in 1 contract
Samples: Indenture (Transwitch Corp /De)
Adjustment of Conversion Rate. (a) The Conversion Rate shall be subject to adjustments adjusted from time to time by the Company as follows:
(1i) In case the Company If Republic shall pay or make a dividend or other distribution on any class of capital stock of the Company payable Republic Stock in shares of Common the Republic Stock, the Conversion Rate Rate, as in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution distribution, shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Republic Stock outstanding at the close of business on the 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2ii) In case the Company If Republic shall issue rights, options or warrants to all holders of its Common Republic Stock (such issuance not being available on an equivalent basis to holders of the Debentures upon conversion)
(1) options, warrants or other rights entitling them to subscribe for or purchase shares of Common Stock Republic Stock, or
(2) securities convertible or exchangeable into shares of Republic Stock, options, warrants or other rights to purchase or acquire securities convertible or exchangeable into shares of Republic Stock, in each case at a price per share of Republic Stock less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock Current Market Price on the date fixed for the determination of stockholders entitled to receive such rightsoptions, options warrants or warrants other rights or securities (other than any rightspursuant to a dividend reinvestment, options share purchase or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredsimilar plan), 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 fraction, the numerator of which the numerator shall be the number of shares of Common Republic Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Republic Stock which the aggregate consideration expected to be received by Republic upon the exercise, conversion or exchange of such options, warrants or other rights or securities (as determined in good faith by the offering price of the total number of shares of Common Stock so offered for subscription or purchase Republic Board, whose determination shall be conclusive and described in a Board Resolution) would purchase at such current market price Current Market Price and the denominator of which shall be the number of shares of Common Republic Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Republic Stock so offered for subscription or purchase, either directly and indirectly, or into which such securities are convertible or exchangeable, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case If outstanding shares of Common Republic Stock shall be subdivided subdivided, split, combined or reclassified into a greater number of shares of Common Republic Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision subdivision, split, combination or reclassification becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Republic Stock shall each be combined or reclassified into a smaller number of shares of Common Republic 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, 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 subdivision, split, reclassification or combination becomes effective.
(4iv) In case the Company (A) If Republic shall, by dividend or otherwise, distribute to all holders of its Common Republic Stock evidences of its indebtedness, shares of any class of capital stock, cash or other property assets (including cash or assets or securities, but excluding (i) any rightsissuance of options, options warrants or warrants other rights or securities referred to in paragraph (2ii) of this SECTION 11.4Section 15.05(a), (ii) any dividend or distribution paid exclusively in cashcash and any dividend, except as set forth shares of capital stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit in paragraphs (5) and (6) the case of this SECTION 11.4a Spin-Off referred to in the next subparagraph, (iii) any or dividend or distribution referred to in paragraph (1i) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 15.05(a)), the Conversion Rate shall be adjusted so that the same shall equal the rate determined increased by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock Current Market Price on the date fixed for such determination less the then fair market value (as determined in good faith by the Board of DirectorsRepublic Board, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Republic Stock and the denominator of which shall be such current market price per share of the Common StockCurrent Market Price, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
. In any case in which this clause (5iv)(A) In case the Company shallis applicable, by dividend or otherwise, distribute to all holders of its Common Stock cash clause (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6iv)(B) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase Section 15.05 shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effectapplicable.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: First Supplemental Indenture (Republic Services, Inc.)
Adjustment of Conversion Rate. The Conversion Rate applicable to any series of Securities shall be subject to adjustments from time to time as follows:
(1a) In case at any time during which Securities of any series are Outstanding the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, such 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 have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), 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 certificates, if any, 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 Company.
(2b) In case at any time during which Securities of any series are Outstanding the Company shall issue rights, warrants or 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) h) of this SECTION 11.4Section 1405) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (King Pharmaceuticals Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed Determination Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction (a) the numerator 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 Determination Date and (b) 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determinationDetermination Date. 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 Company.
(2) In 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 SECTION 11.4Section 12.4) of the Common Stock on the date fixed Determination Date for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)distribution, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination Determination Date shall be increased by dividing such Conversion Rate by a fraction (a) the numerator 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 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 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 the date fixed for such determination Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determinationDetermination 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed Determination Date for the determination of stockholders entitled to receive such distribution by a fraction (a) the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination Determination Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and (b) the denominator of which shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Determination Date. If the date fixed Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the determination of stockholders entitled to receive 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 (8) of this Section.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon make a merger or consolidation to which SECTION 11.11 applies) Cash Distribution in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock Cash Distributions made exclusively in cash within the 365-day period 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 (IIii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded Excess Purchase Payment made within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment has been made pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") Section 12.4, exceeds 10% of the product Company's Market Capitalization on the Determination Date for such Cash Distribution, then, and in each such case, immediately after the close of business on the Determination Date for such Cash Distribution, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on such Determination Date by a fraction (a) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on such Determination Date less an amount equal to the date for quotient of (1) the determination amount of holders of shares of Common Stock entitled to receive such distribution times excess divided by (2) the number of shares of Common Stock outstanding on such date Determination Date and (b) the "aggregate denominator of which shall be equal to the current market price")price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such Determination Date.
(6) In case the Company or any Subsidiary shall make an Excess Purchase Payment in an aggregate that, combined with (i) the aggregate amount of any other Excess Purchase Payments made by the Company or any Subsidiary within the 12 months preceding such Excess Purchase Payment in respect of which no adjustment pursuant to this paragraph (6) has been made and (ii) the aggregate amount of any Cash Distributions made within the 12 months preceding such Excess Purchase Payment in respect of which no adjustment pursuant to paragraph (5) of this Section 12.4 has been made, exceeds 10% of the Company's Market Capitalization as of the Determination Date, then, and in each such case, immediately after prior to the close opening of business on the day after the tender offer in respect of which such date for determination, subject Excess Purchase Payment is to paragraph (12) of SECTION 11.4be made expires, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed Determination Date for determination of the stockholders entitled to receive such distribution tender offer by a fraction (ia) the numerator of which shall be equal (1) to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4A) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each at such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Determination Date by a fraction less (iB) the numerator amount of such excess and (b) the denominator of which shall be equal to (A) the product of (IX) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) on the Completion as of such Determination Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (BY) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Determination Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares")Determination Date.
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 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 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 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 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 11.4Section 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 Average Sales Closing Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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; PROVIDEDprovided, HOWEVERhowever, 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, 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 11.4Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To The Company shall have the extent permitted by applicable lawpower to resolve any ambiguity or correct any error in the application of this paragraph (10) and its actions in so doing shall, the absent manifest error, be final and conclusive.
(11) The Company from time to time at its option may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) 20 calendar days and if the Board of Directors shall have has made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price conclusive and evidenced by 105% in connection with an event which would otherwise be a Change in ControlBoard Resolution. Whenever the Conversion Rate is increased pursuant to the preceding sentence, To exercise this option the Company shall give provide a written notice of the increase to the Trustee and the Holders of Securities in the manner provided in Section accordance with Sections 1.5 and 1.6 at least fifteen (15) 15 calendar days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and first day of the period during which it the Conversion Rate will be adjusted stating that the Conversion Rate will be adjusted pursuant to this provision, the period during which the adjusted Conversion Rate will be in effecteffect and the adjusted Conversion Rate.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Tech Data Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case at any time after the date of the issuance of the Securities, the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common StockStock of the Company, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock of the Company outstanding at the close of business on the 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock of the Company 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 StockStock of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock of the Company held in the treasury of the Company.
(2) In case at any time after the date of the issuance of the Securities, the Company shall issue rights, options or warrants to all holders of its Common Stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Common Stock of the Company without any action required by the Company or any other person) entitling them to subscribe for or purchase shares of Common Stock of the Company (or securities convertible into Common Stock of the Company) at a price per share (or having a conversion price per share) less than the current market price Average Current Market Price per share (determined as provided in paragraph (8) 9) of this SECTION 11.4Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued pursuant to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurreddividend reinvestment plan), 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 of the Company outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock of the Company 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 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 so offered (or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)the
Appears in 1 contract
Samples: Indenture (Xo Communications Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the ------------ Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION Section 11.11 ------------- applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the Common Stock on the date fixed for such ------------ determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION Section 11.11 appliesapplies or as part of a ------------- distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)this
Appears in 1 contract
Adjustment of Conversion Rate. The conversion rate as stated in paragraph 8 of the Securities (the "Conversion Rate Rate") shall be subject to adjustments adjusted from time to time by the Company as follows:
(1a) In case the Company shall (i) pay or make a dividend or other distribution on any class of capital stock of the Company payable 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 immediately prior thereto 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 which it would have owned had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the opening current market price per share of business Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the day following the record date fixed for the determination of stockholders entitled to receive such dividend rights or other distribution warrants, the Conversion Rate in effect immediately prior thereto shall be increased adjusted so that the same shall equal the rate determined by dividing such multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator 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 denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), plus the number of additional shares of Common Stock at any time outstanding shall not include shares held in offered (or into which 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that convertible securities so offered are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredconvertible), 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 and of which the numerator denominator shall be the number of shares of Common Stock outstanding at the close of business on the such record 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 the aggregate conversion price and of the denominator convertible securities so offered, which shall be determined by multiplying the number of shares of Common Stock outstanding 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 close current market price per share (as defined in subsection (d) of business this Section 4.6) of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. If at the date fixed for end of the period during which such determination plus rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening issuable upon conversion of business on the day following the date fixed for such determination. For the purposes of this paragraph (2convertible securities actually issued), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4c) In case the Company shall, by dividend or otherwise, shall distribute to all or substantially all holders of its Common Stock any shares of capital stock of the Company (other than Common Stock), evidences of its indebtedness, shares indebtedness or other non-cash assets (including securities of any class of capital stock, or person other property (including cash or assets or securities, than the Company but excluding (i1) dividends or distributions paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any rights, options or of its securities (excluding those rights and warrants referred to in paragraph subsection (2b) of this SECTION 11.4, (ii) any dividend Section 4.6 and also excluding the distribution of rights to all holders of Common Stock pursuant to the adoption of a stockholders rights plan or distribution paid in cash, except as set forth in paragraphs (5) and (6) the detachment of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) such rights under the terms of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliessuch stockholder rights plan), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the current Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided defined in paragraph subsection (8) d) of this SECTION 11.4Section 4.6) of the Common Stock on the record date fixed for the determination of shareholders entitled to receive such determination distribution, and of which the denominator shall be the current market price per share (as defined in subsection (d) of this Section 4.6) of the Common Stock on such record date less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution.
(1) 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, the Conversion Rate shall be increased so that the same shall equal the 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 (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date and the denominator shall be such current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of cash so distributed, paid or payable on 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 Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (x) the aggregate consideration (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator which shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior evidenced by an Officers' Certificate delivered to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5Trustee thereof) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions consideration) payable to all holders of its Common Stock made exclusively stockholders based on the acceptance (up to any maximum specified in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion terms of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6tender offer) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the last time at which such tenders could have been made on the Expiration Date (the "Expiration Time") (the shares deemed so accepted accepted, up to any such maximum, being referred to as the "Purchased Shares").
) and (7y) The reclassification the product of the number of shares of Common Stock into securities including other than Common Stock outstanding (other than less any reclassification upon a consolidation or merger to which SECTION 11.11 appliesPurchased Shares and excluding any shares held in the treasury of the Company) shall be deemed to involve (a)
(8) For at the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, Expiration Time and 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 Average Sales Prices Per Share 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 (as determined in question and the day before the "ex" date accordance 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.
subsection (9) No adjustment in the Conversion Rate shall be 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, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6d) of this SECTION 11.4Section 4.6) on the Trading Day next succeeding the Expiration Date, as it considers to and the denominator shall be advisable in order to avoid or diminish any income tax liability to any holders the product of the number of shares of Common Stock resulting from outstanding (including tendered shares but excluding any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be shares held in the best interests treasury of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether ) at the Average Sales Price Per Share Expiration Time multiplied by the current market price per share of the Common Stock exceeds (as determined in accordance with subsection (d) of this Section 4.6) on the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever Trading Day next succeeding the Conversion Rate is increased pursuant to the preceding sentenceExpiration Date, the Company shall give notice of the such increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days become effective immediately prior to the date opening of business on the increased Conversion Rate takes effectday following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, and but the Company is permanently prevented by applicable law from effecting any or all such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4purchases or any or all such purchases are rescinded, no adjustment of the Conversion Rate shall again be required adjusted to be made (a) the Conversion Rate which would have been in effect based upon the issuance number of shares actually purchased. If the application of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(hthis Section 4.6(c)
Appears in 1 contract
Samples: Indenture (Rf Micro Devices Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjusted from time to time by the Company as follows:
(1a) In case the Company shall pay a dividend or make a dividend or other distribution on any class of capital stock of the Company payable distribution, in shares of its Common Stock, on its Common Stock, the Conversion Rate in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing multiplying such Conversion Rate by a fraction of which the numerator denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator numerator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase reduction to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company. If any dividend or distribution of the type described in this Section 11.5(a) is declared but is not so paid or made and not required to be 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.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on (as defined in Section 11.5(g) below) at the record date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)warrants, the Conversion Rate in effect at immediately prior thereto shall be adjusted so that the opening of business on same shall equal the day following rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be increased by dividing such Conversion Rate rights or warrants by a fraction the denominator of which the numerator 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 determination rights or warrants 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 Current Market Price and the denominator 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 determination rights or warrants plus the number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be made successively whenever any such rights or warrants are issued, such increase to and shall become effective (subject to paragraph (12)of this SECTION 11.4) 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. 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 determinationrights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. For To the purposes extent that shares of this paragraph (2)Common Stock are not delivered or required to be delivered after the expiration 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 delivery of only 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 Stockactually delivered. The Company will not issue any rights, options If such rights or warrants are not so issued and not required to be so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in respect effect if such record date for the determination of shares of Common Stock held in the treasury of the Companystockholders entitled to receive such rights or warrants had not been fixed.
(3c) 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, and conversely, in case outstanding shares of Common Stock shall each 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 reduction or reductionincrease, 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.
(4d) In case the Company shall, by dividend or otherwise, shall distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock of the Company (other than Common Stock) or evidences of its indebtedness or assets (excluding cash dividends or other property (including cash distributions to the extent paid from retained earnings of the Company) or assets or securities, but excluding (i) any rights, options rights or warrants to subscribe for or purchase any of its securities (excluding those referred to in paragraph Section 11.5(b) above) (2any of the foregoing hereinafter in this Section 11.5(d) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliescalled the "Distributed Securities"), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for the determination of stockholders entitled with respect to receive such distribution by a fraction of which the numerator denominator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the such record date fixed for such determination less the then fair market value on such record date (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive conclusive, and described in a Board Resolutioncertificate filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed Distributed Securities applicable to one share of Common Stock and the denominator numerator of which shall be such current market price the Current Market Price per share of the Common Stock, Stock on the record date for the determina tion of shareholders entitled to receive such distribution; such adjustment to shall become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such record date. Notwithstanding the foregoing, in the event the then fair market value (as so determined) of the portion of the Distributed Securities applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the relevant record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Distributed Securities such holder would have received had such holder converted each Security on such record date. In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this subsection (d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Notwithstanding the foregoing provisions of this subsection (d), 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 the record date fixed for the determination of stockholders such distribution shall be entitled to receive upon such distributionconversion, 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 into Common Stock, PROVIDED that, with respect to any Distributed Securities that are convertible, exchangeable or 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.
(5e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash that is distributed upon a merger or consolidation dividend on the Common Stock to which SECTION 11.11 applies) the extent the aggregate cash dividend per share of Common Stock in an aggregate amount that, combined together with any fiscal quarter does not exceed the greater of (IA) the aggregate amount per share of any other cash distributions to all holders of its Common Stock made exclusively in of the next preceding quarterly cash within dividend on the 365-day period Common Stock to the extent such preceding quarterly dividend did not require any adjustment of the date of payment of such distribution and in respect of which no adjustment Conversion Rate pursuant to this paragraph Section 11.5(e) (5) has been made as adjusted to reflect subdivisions or combinations of the Common Stock), and (IIB) 3.75% of the aggregate average of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion last reported sales price of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph Section 11.5(g)) during the ten Trading Days (8) as defined in Section 11.5(g)) next preceding the date of this SECTION 11.4declaration of such dividend and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Common Stock on Company, whether voluntary or involuntary), then, in such case, unless the date Company elects to reserve such cash for distribution to the determination of holders of the Securities upon the conversion of the Securities so that any such holder converting Securities will receive upon such conversion, in addition to the shares of Common Stock entitled to receive which such holder is entitled, the amount of cash which such holder would have received if such holder had, immediately prior to the record date for such distribution times the number of shares of cash, converted its Securities into Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4Stock, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the such record date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the denominator shall be such Current Market Price of the Common Stock on the record date less the amount of cash so distributed (iand not excluded as provided above) applicable to one share of Common Stock and the numerator of which shall be the Current Market Price of the Common Stock on such record date; such adjustment to be effective immediately prior to the opening of business on the day following the record date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) Current Market Price of the Common Stock on the date fixed for such determination less an amount equal to record date, in lieu of the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which foregoing adjustment, adequate provision shall be equal made so that each Noteholder shall have the right to receive upon conversion the current market price per share amount of cash such holder would have received had such holder converted each Security on the record date. 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 any adjustment is required to be made as set forth in this subsection (determined e) as provided in paragraph (8) a result of this SECTION 11.4) a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the Common Stock on quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this subsection (e) above as a result of a distribution that is not a quarterly dividend, such date fixed for determinationadjustment shall be based upon the full amount of the distribution.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary subsidiary of the Company for all or any portion of the Common Stock shall be completed for expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender offer or exchange offer, by the Company or any Subsidiary subsidiary of the Company for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") made, exceeds 1015% of the product of the current market price per share Current Market Price of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer last time (the "Completion DateExpiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business on the Completion Date date of the Expiration Time by a fraction (iA) the numerator of which shall be equal to (A1) the product of (Ix) the current market price per share Current Market Price of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by date of the Expiration Time and (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (B2) the combined amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender and cash amountoffer) of Purchased Shares, and (iiB) the denominator of which shall be equal to the product of (Ax) the current market price per share Current Market Price of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by Expiration Time and (By) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion Date Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"). In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any 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 had not been made.
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 paragraphSection 11.5, 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 shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors following terms shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)meaning indicated:
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case at any time after the date hereof, the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 certificates, if any, 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 Company.
(2) In case at any time after the date hereof, the Company shall issue rights, warrants or 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 SECTION 11.4Section 13.4) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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, conversely in case outstanding shares of Common Stock shall each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property assets (including cash or assets or securities, but excluding (i) any rights, warrants or options or warrants referred to in paragraph (2) of this SECTION 11.4Section 13.4, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section 13.4 and (iv) any merger or consolidation to which SECTION 11.11 Section 13.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 13.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute make a distribution to all holders of its Common Stock consisting exclusively of cash (excluding any cash that is distributed upon a merger or consolidation or a sale or transfer of all or substantially all of the assets of the Company to which SECTION 11.11 appliesSection 13.11 applies or as part of a distribution referred to in paragraph (4) of this Section 13.4) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section 13.4 has been made (the "combined cash and tender amount") made, exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders shareholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 13.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 13.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender offer or exchange offer, by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment adjustment, pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section 13.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 13.4) as of the completion of such tender offer last time (the "Completion DateExpiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 13.4) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 13.4) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion Date Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 13.11 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 (4) of this Section 13.4), 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 13.4).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4Section 13.4, 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 Average Sales Closing Prices Per Share 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 'ex' date", ," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the applicable securities exchange or 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 shall be 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; PROVIDEDprovided, HOWEVERhowever, 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, 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 11.4Section 13.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for United States federal income tax purposespurposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing, absent manifest error, shall be final and conclusive.
(11) To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days days, the increase is irrevocable during such period, and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDEDprovided, HOWEVERhowever, that no such increase shall not be taken into account for purposes of determining whether the Average Sales Closing Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Controlof Control pursuant to Section 15.4. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Genesco Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed Determination Date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction (a) the numerator 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 Determination Date and (b) 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determinationDetermination Date. 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 Company.
(2) In 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 SECTION 11.4Section 12.4) of the Common Stock on the date fixed Determination Date for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)distribution, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination Determination Date shall be increased by dividing such Conversion Rate by a fraction (a) the numerator 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 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 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 the date fixed for such determination Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determinationDetermination 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 sub division or combination becomes effective.
(4) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed Determination Date for the determination of stockholders entitled to receive such distribution by a fraction (a) the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination Determination Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and (b) the denominator of which shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Determination Date. If the date fixed Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the determination of stockholders entitled to receive 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 (8) of this Section.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon make a merger or consolidation to which SECTION 11.11 applies) Cash Distribution in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock Cash Distributions made exclusively in cash within the 365-day period 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 (IIii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded Excess Purchase Payment made within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment has been made pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") Section 12.4, exceeds 10% of the product Company's Market Capitalization on the Determination Date for such Cash Distribution, then, and in each such case, immediately after the close of business on the Determination Date for such Cash Distribution, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on such Determination Date by a fraction (a) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on such Determination Date less an amount equal to the date for quotient of (1) the determination amount of holders of shares of Common Stock entitled to receive such distribution times excess divided by (2) the number of shares of Common Stock outstanding on such date Determination Date and (b) the "aggregate denominator of which shall be equal to the current market price")price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such Determination Date.
(6) In case the Company or any Subsidiary shall make an Excess Purchase Payment in an aggregate that, combined with (i) the aggregate amount of any other Excess Purchase Payments made by the Company or any Subsidiary within the 12 months preceding such Excess Purchase Payment in respect of which no adjustment pursuant to this paragraph (6) has been made and (ii) the aggregate amount of any Cash Distributions made within the 12 months preceding such Excess Purchase Payment in respect of which no adjustment pursuant to paragraph (5) of this Section 12.4 has been made, exceeds 10% of the Company's Market Capitalization as of the Determination Date, then, and in each such case, immediately after prior to the close opening of business on the day after the tender offer in respect of which such date for determination, subject Excess Purchase Payment is to paragraph (12) of SECTION 11.4be made expires, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed Determination Date for determination of the stockholders entitled to receive such distribution tender offer by a fraction (ia) the numerator of which shall be equal (1) to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4A) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each at such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Determination Date by a fraction less (iB) the numerator amount of such excess and (b) the denominator of which shall be equal to (A) the product of (IX) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) on the Completion as of such Determination Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (BY) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Determination Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares")Determination Date.
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 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 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 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 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 11.4Section 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 Average Sales Closing Prices Per Share 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 71 market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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; PROVIDEDprovided, HOWEVERhowever, 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, 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 11.4Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To The Company shall have the extent permitted by applicable lawpower to resolve any ambiguity or correct any error in the application of this paragraph (10) and its actions in so doing shall, the absent manifest error, be final and conclusive.
(11) The Company from time to time at its option may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) 20 calendar days and if the Board of Directors shall have has made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price conclusive and evidenced by 105% in connection with an event which would otherwise be a Change in ControlBoard Resolution. Whenever the Conversion Rate is increased pursuant to the preceding sentence, To exercise this option the Company shall give provide a written notice of the increase to the Trustee and the Holders of Securities in the manner provided in Section accordance with Sections 1.5 and 1.6 at least fifteen (15) 15 calendar days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and first day of the period during which it the Conversion Rate will be adjusted stating that the Conversion Rate will be adjusted pursuant to this provision, the period during which the adjusted Conversion Rate will be in effecteffect and the adjusted Conversion Rate.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Tech Data Corp)
Adjustment of Conversion Rate. The Base Conversion Rate shall be subject to adjustments adjusted from time to time by the Issuer as follows:
(1a) In case the Company Issuer shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company payable 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 day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction,
(i) the numerator of which shall be increased by dividing the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for the determination of stockholders entitled to receive such Conversion Rate by a fraction dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution; and
(ii) the denominator 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distributiondetermination, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 If any dividend or make any distribution on shares of Common Stock held in the treasury of the Companytype described in this Section 12.11(a) is declared but not so paid or made, the Base Conversion Rate shall again be adjusted to the Base Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company Issuer shall issue rights, options 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 stockholders entitled to receive such rights or warrants) 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) average of this SECTION 11.4) the Closing Sale Prices of the Common Stock on 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, options rights or warrants by a fraction,
(other than any rights, options or warrants (ai) that by their terms will also the numerator of which shall be issued to any Holder upon conversion the number of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business outstanding on the day following the date fixed for determination of stockholders entitled to receive such determination rights 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 increased by dividing such Conversion Rate by a fraction the sum of which the numerator 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 determination rights or warrants plus the number of shares of Common Stock which that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at 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 price and the denominator distribution. Such adjustment shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for successively made whenever any such determination plus the number of shares of Common Stock so offered for subscription rights or purchasewarrants are issued, such increase to and shall become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. For To the purposes extent that shares of this paragraph (2)Common Stock are not delivered after the expiration of such rights or warrants, the Base Conversion Rate shall be readjusted to the Base 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 shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate 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 any time outstanding shall not include shares held in a price less than the treasury average of the Company but shall include shares issuable Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such distribution, and in respect determining the aggregate offering price of scrip certificates issued in lieu of fractions of such shares of Common Stock. The Company will not issue , there shall be taken into account any rights, options consideration received by the Issuer for such rights or warrants in respect and any amount payable on exercise or exchange thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) 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, and conversely, in case outstanding shares of Common Stock shall each 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.
(4d) In case the Company Issuer shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of its capital stock, stock or other property evidences of its indebtedness or assets (including cash or assets or securities, but excluding (ix) any rights, options rights or warrants referred to in paragraph (2) of this SECTION 11.4Section 12.11(b), (iiy) any dividend or distribution (I) paid exclusively in cash, except as set forth cash or (II) referred to in paragraphs (5Section 12.11(a) and (6) of this SECTION 11.4, (iiiz) any dividend or distribution referred to in paragraph Section 12.11(g)) (1any of the foregoing hereinafter in this Section 12.11(d) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliescalled the "Distributed Property")), then, in each such case, the Base Conversion Rate shall be adjusted increased so that the same shall be equal to the rate determined by dividing multiplying the Base Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction fraction,
(i) the numerator of which the numerator shall be the current market price per share Current Market Price on such Record Date; and
(determined as provided in paragraph (8) ii) the denominator of this SECTION 11.4) of which shall be the Common Stock Current Market Price on the date fixed for such determination Record Date less the then fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and described in a resolution of the Board Resolutionof Directors) on the Record Date of the portion of the assets, shares or evidences of indebtedness Distributed Property so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Record Date; provided that if the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value then Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolutionso determined) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant Distributed Property so distributed applicable to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, the current market price per one share of Common Stock is equal to or greater than the Current Market Price on any date the Record Date, in lieu of the foregoing adjustment, adequate provision shall be calculated by the Company and be deemed to be the average of the daily Average Sales Prices Per Share 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 applicable securities exchange without made so that each Holder shall have the right to receive upon conversion the amount of Distributed Property such issuance or distribution.
(9) No adjustment in Holder would have received had such holder converted each Security on the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)Record
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Samples: Indenture (Getty Images Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company payable 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 day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction, the numerator of which shall be increased by dividing the sum of the number of shares of the Common Stock outstanding at the close of business on the date fixed for determination and the total number of shares constituting such Conversion Rate by a fraction dividend or other distribution, and the denominator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes purpose of this paragraph (1a), 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 StockCompany. 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 Section 15.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options 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 stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (8) of this SECTION 11.4defined below) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rightsrights or warrants, options or warrants (other than any rights, options or warrants (a) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), multiplying the Conversion Rate in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination rights or warrants by a fraction, the numerator of which shall be increased by dividing the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such Conversion Rate by a fraction rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and the denominator of which the numerator 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 determination rights or warrants plus the number of shares of Common Stock which that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator Current Market Price. Such adjustment shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for successively made whenever any such determination plus the number of shares of Common Stock so offered for subscription rights or purchasewarrants are issued, such increase to and shall become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. For To the purposes extent that shares of this paragraph (2)Common Stock 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 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 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 any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company will not issue any rights, options for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) 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, and conversely, in case outstanding shares of Common Stock shall each 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.
(4d) 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, stock of the Company (other than any dividends or other property distributions to which Section 15.05(a) applies) or evidences of its indebtedness or assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this SECTION 11.4Section 15.05(b), (ii) and excluding any dividend or distribution paid in cash, except as set forth in paragraphs (5x) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph Section 15.05(c) or (1y) referred to in Section 15.05(a)) (any of the foregoing hereinafter in this SECTION 11.4 and Section 15.05(d) called the “Securities”), then, in each such case (iv) unless the Company elects to reserve such Securities for distribution to the Debentureholders upon the conversion of the Debentures so that any merger or consolidation such holder converting Debentures will receive upon such conversion, in addition to the shares of Common Stock to which SECTION 11.11 appliessuch 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 Record Date (as defined in Section 15.05(h)(4) for such distribution of the Securities)), the Conversion Rate shall be adjusted increased so that the same shall be equal to the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock Record Date and the denominator of which shall be such current market price the Current Market Price per share of the Common Stock, Stock on such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and described in a Board Resolution) resolution of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) on the aggregate Record Date of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant Securities so distributed applicable to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per one share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of Stock, such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, increase to become effective immediately prior to the opening of business on the day after following such Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed 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 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 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 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 Section 15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Under the provisions of the Company’s Rights Plan (the “Rights Plan”), upon conversion of the Debentures into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the holders of Debentures will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. 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 15.05 (and no adjustment to the Conversion Rate under this Section 15.05 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 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the Completion Dateoccurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in 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 15.05 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 adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior readjusted upon such final redemption or repurchase to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal give effect to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation distribution or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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 shareTrigger Event, as the case may be.
(10) The Company may make such increases in the Conversion 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 11.4, as though it considers were a cash distribution, equal to be advisable in order to avoid the per share redemption or diminish any income tax liability to any repurchase price received by a holder or holders of shares of Common Stock resulting from any dividend with respect to such rights or distribution 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 issuance repurchase, and (2) in the case of such rights or warrants to purchase that shall have expired or subscribe for Common Stock or from been terminated without exercise by any event treated as such for income tax purposes. To the extent permitted by applicable lawholders thereof, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that readjusted as if such increase shall rights and warrants had not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Controlbeen issued. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no No adjustment of the Conversion Rate shall be required made pursuant to be made this Section 15.05(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 Section 15.05(d) and Sections 15.05(a) and (ab), any dividend or distribution to which this Section 15.05(d) upon the issuance is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock pursuant (or both), 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 or rights or warrants (and any present Conversion Rate increase required by this Section 15.05(d) with respect to such dividend or future plan for the reinvestment distribution shall then be made) immediately followed by (2) a dividend or distribution of dividends, such shares of Common Stock or such rights or warrants (and any further Conversion Rate increase required by Sections 15.05(a) and (b) because with respect to such dividend or distribution shall then be made), except (A) the Record Date of a tender such dividend or exchange offer distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “the character described date fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Sections 15.05(a) and (b), and (B) any shares of Common Stock included in Rule 13e-4(hsuch dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of Section 15.05(a).
Appears in 1 contract
Samples: Indenture (Mentor Graphics Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any consideration distributed in any merger or consolidation to which SECTION Section 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION Section 11.11 appliesapplies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION Section 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of 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 pricethreshold amount"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price threshold amount divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION Section 11.4) as of the completion of last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (the "Completion Date"as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION Section 11.4) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION Section 11.4) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date Expiration Time less the number of all shares validly tendered and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION Section 11.11 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 11.4).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION Section 11.4, 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 Average Sales Closing Prices Per Share 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 "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this -76- 82 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 shall be 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; PROVIDEDprovided, HOWEVERhowever, 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, 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 Section 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (I2 Technologies Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjusted, without duplication, from time to time as followsby the Company in accordance with this Section 10.04:
(1a) In case the Company shall hereafter pay a dividend or make a dividend distribution to all or other distribution on any class of capital stock substantially all holders of the Company payable 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 day date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution by a fraction, 57
(i) the numerator of which shall be increased by dividing the sum of (A) the number of shares of Common Stock outstanding at the close of business on the date fixed for such Conversion Rate by a fraction determination plus (B) the total number of shares of Common Stock constituting the dividend or distribution; and
(ii) the denominator 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distributiondetermination, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 If any dividend or make any distribution on shares of Common Stock held in the treasury of the Companytype described in this Section 10.04 is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, warrants or options (other than pursuant to any dividend reinvestment or warrants share repurchase plans) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 60 days after the date of such distribution) 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 SECTION 11.4) of the Common Stock Current Market Price on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than any rightsoptions, options or warrants (a) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), multiplying the Conversion Rate in effect at the opening of business on the day following immediately prior to the date fixed for determination of shareholders entitled to receive such determination rights, warrants or options by a fraction,
(i) the numerator of which shall be increased by dividing such Conversion Rate by a fraction the sum of which the numerator shall be (A) the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such determination rights or warrants plus (B) the total number of additional shares of Common Stock offered for subscription or purchase, and
(ii) the denominator of which is the sum of (A) the number of shares of Common Stock which outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus (B) the total number of additional shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at the Current Market Price of the Common Stock on such current market price and the denominator date. Such adjustment shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for successively made whenever any such determination plus the number of shares of Common Stock so offered for subscription rights or purchasewarrants are issued, such increase to and shall become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such determinationrights or warrants. For To the purposes extent that shares of this paragraph (2)Common Stock 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 shares of Common Stock at any time outstanding actually delivered. In the event that such rights or warrants are not so exercised, 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 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 Stockbeen fixed. The Company will not issue In determining whether any rights, options or warrants in respect of entitle the holders to subscribe for or purchase shares of Common Stock held at less than such Current Market Price, and in determining the treasury aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the CompanyCompany 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.
(3c) 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, and conversely, in case outstanding shares of Common Stock shall each 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.
(4d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, Capital Stock of the Company or evidences of its indebtedness or other property assets (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2Section 10.04(b) of this SECTION 11.4, (ii) and excluding any dividend or distribution (x) paid exclusively in cash, except as set forth in paragraphs cash or (5y) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph Section 10.04(a)) (1any of the foregoing hereinafter in this Section 10.04(d) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliescalled the "Distributed Assets"), then, in each such case, the Conversion Rate shall be adjusted increased so that the same shall be equal to the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Ex-Dividend Date with respect to receive such distribution by a fraction fraction,
(i) the numerator of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such Ex-Dividend Date; and
(ii) the date fixed for such determination denominator of which shall be the Current Market Price per share of the Common Stock less the then fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive Directors and described in a resolution of the Board Resolutionof Directors) on the Ex-Dividend Date of the portion of the assets, shares or evidences of indebtedness Distributed Assets so distributed applicable to in respect of one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Ex-Dividend Date; provided, however, that in the event (1) the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on such Ex-Dividend Date or (2) the Current Market Price of Common Stock on the Ex-Dividend Date exceeds the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Distributed Assets such Holder would have received had such Holder converted each Security on the Ex-Dividend Date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall be adjusted to be the 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 Section 10.04(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. 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 10.04 (and no adjustment to the Conversion Rate under this Section 10.04 shall 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 10.04. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in 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 10.04 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 10.04(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 Securities upon conversion by such Holders of Securities to Common Stock. For purposes of this Section 10.04(d) and Section 10.04(a) and (b), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), 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 or rights or warrants (and any Conversion Rate adjustment required by this Section 10.04(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 10.04(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Ex-Dividend Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution," "the date fixed for the determination of shareholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Section 10.04(a) and (b), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 10.04(a). If any Distributed Assets requiring any adjustment pursuant to this Section 10.04(d) consists of the Capital Stock, or similar equity interests in, a Subsidiary or other business unit of the Company which are or in connection with such distribution will be listed or quoted for trading on a U.S. national or regional securities exchange or The New York Stock Exchange, the Conversion Rate in effect immediately before the close of business on the Ex-Dividend Date fixed for determination of shareholders entitled to receive the distribution shall instead be increased by multiplying the Conversion Rate then in effect by a fraction, (A) the numerator of which is the sum of (1) the average of the Last Reported Sale Prices of such distributed security for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on The New York Stock Exchange or such other national or regional exchange or market on which such securities are then listed or quoted plus (2) the average of the Closing Prices of the Common Stock over the same Trading Day period and (B) the denominator of which is such average of the Last Reported Sale Prices of the Common Stock for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on The New York Stock Exchange or such other national or regional exchange or market on which the securities are then listed or quoted.
(5e) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock cash (an "Extraordinary Cash Dividend") (excluding any quarterly cash dividend on the Company's Common Stock to the extent that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate cash dividend per share of Common Stock related to any fiscal quarter does not exceed $0.0125 (which amount shall be proportionally adjusted in the event of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and occurrence described in a Board ResolutionSection 10.04(a) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6Section 10.04(c) of this SECTION 11.4 has been made (the "combined cash and tender amountDividend Threshold Amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed Ex-Dividend Date for determination of the stockholders entitled to receive such distribution Extraordinary Cash Dividend by a fraction fraction,
(i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) Closing Price of the Common Stock on as of the date fixed for Trading Day before such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and Ex-Dividend Date, and
(ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) such Closing Price of the Common Stock on as of the Trading Day before such date fixed for determination.
(6) In case a tender offer made by Ex-Dividend Date minus the amount in cash per share the Company or any Subsidiary for all or any portion distributes to holders in excess of the Common Stock shall be completed Dividend Threshold Amount (and for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment has been made). If an adjustment is required to be made pursuant to this paragraph (6) has been made and (II) Section 10.04(e), as a result of a distribution that is not a regular quarterly cash dividend, the aggregate amount of any distributions Dividend Threshold Amount will be deemed to all holders of be zero. The Dividend Threshold Amount is subject to adjustment in a manner inversely proportional to adjustments to the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which Conversion Rate, provided that no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been shall be made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, Dividend Threshold Amount for any adjustment made to the Conversion Rate pursuant to this Section 10.04(e). The adjustment shall be adjusted so that become effective immediately after the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Business Day immediately preceding the Ex-Dividend Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Invacare Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case at any time after the date hereof, the Company shall pay or make a dividend or other distribution on all or any portion of its Common Stock or shall pay or make a dividend or other distribution on any other class of capital stock of the Company payable in shares of which dividend or distribution includes Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), 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 certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not pay If any dividend or make any distribution on shares of Common Stock held in the treasury of the Companytype described in this Section 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.
(2b) In case at any time after the date hereof, the Company shall pay or make a dividend or other distribution on all of its Common Stock consisting of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock, rights, warrants or options (not being available on an equivalent basis to Holders of the Securities upon conversion) entitling the 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) h) of this SECTION 11.4Section 12.04) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, warrants or options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued pursuant to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurreddividend reinvestment plan), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares Common Stock held in the treasury of the Company (or, if rights or warrants are issued in respect of all of the Common Stock of the Company, will not exercise any such rights or warrants in respect of Common Stock held in the treasury of the Company.
(3) ). In case outstanding 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 share 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 of the Company.
(c) In case at any time after the date hereof, all or any portion of the Common Stock outstanding 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, conversely in case outstanding shares at any time after the date hereof, all or any portion of the Common Stock outstanding shall each 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.
(4d) In case at any time after the date hereof, 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, indebtedness or other property assets (including cash or assets or securities, but excluding (i) any rights, warrants or options or warrants referred to in paragraph (2b) of this SECTION 11.4Section 12.04, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1a) of this SECTION 11.4 Section 12.04 and (iv) any dividend or distribution upon a merger or consolidation referred to which SECTION 11.11 appliesin paragraph (e) of this Section 12.04), the Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock Share and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If any dividend or distribution of the type described in this Section 12.04(d) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would be in effect if such dividend or distribution had not been declared.
(5e) In case at any time after the date hereof, the Company shall, by dividend or otherwise, distribute make a distribution to all holders of its Common Stock consisting exclusively of cash (excluding any cash that is distributed upon a merger or consolidation or a sale or transfer of all or substantially all of the assets of the Company to which SECTION 11.11 appliesSection 12.11 applies or as part of a distribution referred to in paragraph (d) of this Section 12.04) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (IIii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this SECTION 11.4 Section 12.04 has been made (the "combined cash and tender amount") made, exceeds 1012.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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")date, then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders shareholders entitled to receive such distribution by a fraction (iA) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10such 12.5% of such aggregate current market price divided by and (y) the number of shares of Common Stock outstanding on such date fixed for determination and (iiB) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) of the Common Stock on such date fixed for determination. If any dividend or distribution of the type described in this Section 12.04(e) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would be in effect if such dividend or distribution had not been declared.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) that combined together with (Ii) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender offer or exchange offer, by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment adjustment, pursuant to this paragraph (6f) has been made and (IIii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this SECTION 11.4 Section 12.04 has been made (the "combined tender and cash amount") made, exceeds 1012.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) as of the completion of such tender offer last time (the "Completion DateExpiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business on the Completion Date date of the Expiration Time by a fraction (iA) the numerator of which shall be equal to (A1) the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) on the Completion Date multiplied by date of the Expiration Time and (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (B2) the combined amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender and cash amountoffer) of Purchased Shares, and (iiB) the denominator of which shall be equal to the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) as of the Completion Date multiplied by Expiration Time and (By) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion Date Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"). In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such tender offer had not been made.
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 applies) shall be deemed to involve (ai) 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 (c) of this Section 12.04), and (ii) a subdivision or combination, as the case may be, of the number of Common Stock outstanding immediately prior to such reclassification into the number 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 12.04).
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) or (6f) of this SECTION 11.4Section 12.04, 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 Average Sales Closing Prices Per Share 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 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the applicable securities exchange or in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; PROVIDEDprovided, HOWEVERhowever, that any adjustments which by reason of this paragraph (9i) 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 In the case may be.
(10) The Company may make such increases in the Conversion 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased adjustment deferred pursuant to the preceding sentencethis paragraph (i), the Company shall give notice make appropriate elections under the Treasury Regulations promulgated pursuant to Section 305 of the increase to the Holders Internal Revenue Code of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect1986, and such notice shall state the increased Conversion Rate and the period during which it will be in effectas amended.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Convertible Subordinated Notes Agreement (Rite Aid Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 appliesSection 12.11 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section 12.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) as of the completion of last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (the "Completion Date"as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date Expiration Time less the number of all shares validly tendered and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 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 12.4).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4Section 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 Average Sales Closing Prices Per Share 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 '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 shall be 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, 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 11.4Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4Section, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, dividends or (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)13e-4(h)(5) under the Exchange Act or any successor rule thereto.
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company payable 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 day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction fraction,
(i) the numerator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination and 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes purpose of this paragraph (1a), 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 StockCompany. The Company will not pay If any dividend or make any distribution on shares of Common Stock held in the treasury of the Companytype described in this Section 10.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options rights (excluding any Rights pursuant to the Rights Agreement) or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within sixty (60) days after the date of the issuance of such rights or warrants) 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 SECTION 11.4) of the Common Stock Sale Price on the date fixed for the determination of stockholders entitled to receive such rightsrights or warrants, options or warrants (other than any rights, options or warrants (a) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), dividing the Conversion Rate in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be increased by dividing such Conversion Rate rights or warrants by a fraction fraction,
(i) the numerator of which the numerator 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 determination rights or warrants plus the number of shares of Common Stock which that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and Sale Price; and
(ii) the denominator 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 determination rights or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights or warrants are issued, such increase to and shall become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. For To the purposes extent that shares of this paragraph (2)Common Stock 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 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 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 any time outstanding shall not include shares held less than such Sale Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company will not issue any rights, options for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) 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, and conversely, in case outstanding shares of Common Stock shall each 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.
(4d) 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, Capital Stock of the Company or other property evidences of its indebtedness or assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this SECTION 11.4Section 10.04(b), (ii) any dividend dividends or distribution paid in cash, except as set forth in paragraphs (5distributions to which Section 10.04(a) and (6) of this SECTION 11.4applies, (iii) any dividend or distribution distributions paid exclusively in cash referred to in paragraph (1) of this SECTION 11.4 and Section 10.04(e)or (iv) any merger dividends or consolidation distributions in connection with a reclassification, change, consolidation, merger, combination, statutory share exchange, sale or conveyance to the extent that it resulted in an adjustment to the conversion consideration) (any of the foregoing hereinafter in this Section 10.04(d) called the "DISTRIBUTED ASSETS"), then, in each such case (unless the Company elects to reserve such Distributed Assets for distribution to the Holders upon the conversion of the Securities so that any such holder converting Securities will receive upon such conversion, in addition to the shares of Common Stock to which SECTION 11.11 appliessuch 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 10.04(h)(iii)) for such distribution of the Distributed Assets), the Conversion Rate shall be adjusted 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 date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction fraction,
(i) the numerator of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination Record Date less the then fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and described in a resolution of the Board Resolutionof Directors) on the Record Date of the portion of the assets, shares or evidences of indebtedness Distributed Assets so distributed applicable to one share of Common Stock and Stock; and
(ii) the denominator of which shall be such current market price the Current Market Price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Record Date; provided, however, that in the date fixed for the determination of stockholders entitled to receive such distribution.
event (5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value then Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolutionso determined) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Distributed Assets so distributed applicable to one share of Common Stock concluded within is equal to or greater than the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) Current Market Price of the Common Stock on the date for Record Date or (2) the determination of holders of shares Current Market Price of Common Stock entitled on the Record Date exceeds the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to receive such distribution times the number of shares one share of Common Stock outstanding by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Distributed Assets such holder would have received had such holder converted each Security on the Record Date. In the event that such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted so that the same shall equal the rate determined by dividing to be the Conversion Rate that would then be in effect immediately prior to if such dividend or distribution had not been declared. If the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect Fair Market Value of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no distribution requiring an adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)this
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12l) of this SECTION 11.4Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), 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 Company.
(2b) 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) h) of this SECTION 11.4Section 10.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b2) that are only exercisable upon the occurrence of a specified triggering event and such triggering event has not occurred), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of l) of this SECTION 11.4Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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 each 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.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2b) of this SECTION 11.4Section 10.4, (ii2) any dividend or distribution paid in cash, except as set forth in paragraphs (5e) and (6f) of this SECTION 11.4Section 10.4, (iii3) any dividend or distribution referred to in paragraph (1a) of this SECTION 11.4 Section 10.4 and (iv4) any merger or consolidation to which SECTION 11.11 Section 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12l) of this SECTION 11.4Section 10.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distribution referred to in Section 10.4(d) -61- and any cash that is distributed upon a merger or consolidation to which SECTION 11.11 Section 10.11 applies) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (II2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this SECTION 11.4 Section 10.4 has been made (the "combined cash and tender amountCOMBINED CASH AND TENDER AMOUNT") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) of 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 priceAGGREGATE CURRENT MARKET PRICE"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12l) of SECTION 11.4Section 10.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (iA) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (xi) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (yii) the number of shares of Common Stock outstanding on such date fixed for determination and (iiB) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) of the Common Stock on such date fixed for determination.
(6f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I1) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5e) of this SECTION 11.4 Section 10.4 has been made (the "combined tender and cash amountCOMBINED TENDER AND CASH AMOUNT") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) as of the completion of such tender offer (the "Completion DateCOMPLETION DATE") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (iA) the numerator of which shall be equal to (Ai) the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) on the Completion Date multiplied by (IIy) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (Bii) the combined tender and cash amount, and (iiB) the denominator of which shall be equal to the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 10.4) as of the Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the Date (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased SharesPURCHASED SHARES").
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 10.11 applies) shall be deemed to involve (a1) 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 (d) of this Section 10.4), and (2) 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 (c) of this Section 10.4).
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) or (6f) of this SECTION 11.4Section 10.4, 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 Average Sales Prices Per Share 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 "exex date" 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.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; PROVIDEDprovided, HOWEVERhowever, that any adjustments which by reason of this paragraph (9i) 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.
(10j) The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1a), (2b), (3), (4), (5) and (6) of this SECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h),
Appears in 1 contract
Samples: Indenture (Asm International N V)
Adjustment of Conversion Rate. The Conversion Rate conversion price at which the Securities are convertible into Common Stock shall be subject to adjustments adjustment from time to time as follows:
(1i) In case the Company shall pay or make a dividend or other distribution on its Common Stock exclusively in Common Stock or shall pay or make a dividend or other distribution on any other class or series of capital stock of the Company payable in shares of which dividend or distribution includes Common Stock, the Conversion Rate conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased reduced by dividing multiplying such Conversion Rate by a fraction of which the numerator shall be conversion price by: A/(A+B), where: A = the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination determination; and the denominator shall be the sum of such number of shares and B = the total number of shares of Common Stock constituting such dividend or other distribution, such increase reduction to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph subparagraph (1i), 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 StockCompany. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2ii) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights or warrants entitling them the holders thereof 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 SECTION 11.4) Current Market Price Per Share of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.18
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increasedreduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reducedincreased, such increase reduction or reductionincrease, 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.
(4iv) 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 or series of capital stock, or other property (including cash or assets or (including securities, but excluding (i) any rights, options rights or warrants referred to in paragraph subparagraph (2ii) of this SECTION 11.4Section 4.4, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) cash and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph subparagraph (1i) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 4.4), the Conversion Rate conversion price shall be adjusted reduced so that the same shall equal the rate price determined by dividing multiplying the Conversion Rate conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this subparagraph (iv) by: (A-B)/A, where: A = the Current Market Price Per Share of the Common Stock immediately prior to the close of business on the date fixed for determination of stockholders entitled to receive such distribution (the "Reference Date") and B = the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors), on the Reference Date, of the portion of the evidence of indebtedness, shares of capital stock, cash and assets so distributed applicable to one share of Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Reference Date, provided, however, that for purposes of this subparagraph (iv), any dividend or distribution that includes shares of Common Stock or rights or warrants to subscribe for or purchase shares of Common Stock shall be deemed instead to be (A) a dividend or distribution of the evidences of 19
(v) In case the Company shall pay or make a dividend or other distribution on its Common Stock exclusively in cash (excluding (A) cash that is part of the distribution referred to in (iv) above and, (B) in the case of any quarterly cash dividend on the Common Stock, the portion thereof that does not exceed the per share amount of the next preceding quarterly cash dividend on the Common Stock (as adjusted to appropriately reflect any of the events referred to in subparagraph (i), (ii), (iii) and (iv) of this Section 4.4), or all of such quarterly cash dividend if the amount thereof per share of Common Stock multiplied by four does not exceed [ %] of the Current Market Price Per Share of the Common Stock on the Trading Day next preceding the date of declaration of such dividend), the conversion price shall be reduced so that the same shall equal the conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this subparagraph (v) by: (A- B)/A, where: A = the Current Market Price Per Share of the Common Stock immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction distribution, and B = the amount of which the numerator shall be the current market price per share (determined cash so distributed and not excluded as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed above applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment reduction to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination payment of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9vi) No adjustment in the Conversion Rate conversion price shall be 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 1% in such ratethe conversion price; PROVIDEDprovided, HOWEVERhowever, that any adjustments which by reason of this paragraph subparagraph (9vi) 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.
(10vii) Whenever the conversion price is adjusted as herein provided: (A) the Company shall compute the adjusted conversion price and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth the adjusted conversion price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith be filed with the transfer agent for the Securities; and (B) a notice stating that the conversion price has been adjusted and setting forth the adjusted conversion price shall forthwith be required, and as soon as practicable after it is required, such notice shall be mailed by the Company to all record holders of Securities at their last addresses as they shall appear upon the stock transfer books of the Company.
(viii) The Company may make such increases in the Conversion 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase reduce the Conversion Rate conversion price by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentencedays, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and reduction is irrevocable during the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)and 20
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case at any time after the date hereof, the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 certificates, if any, 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 Company.
(2b) In case at any time after the date hereof, the Company shall issue rights, warrants or 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 SECTION 11.4Section 13.4) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)greater
Appears in 1 contract
Samples: Indenture (MRV Communications Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjustment from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject immediately prior to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2) In Subject to paragraph 9 of this Section 14.4, in case the Company shall issue rights, options or warrants to all holders of its Common Stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Common Stock without any action required by the Company or any other person) 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) 10) of this SECTION 11.4Section 14.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 per share and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject immediately prior to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case at any time after the date hereof, the Company shall pay or make a dividend or other distribution on all or any portion of its Common Stock or shall pay or make a dividend or other distribution on any other class of capital stock of the Company payable in shares of which dividend or distribution includes Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), 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 certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not pay If any dividend or make any distribution on shares of Common Stock held in the treasury of the Companytype described in this Section 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.
(2b) In case at any time after the date hereof, the Company shall pay or make a dividend or other distribution on all of its Common Stock consisting of, or shall otherwise issue rights, options or warrants to all holders of its shares of Common Stock, rights, warrants or options (not being available on an equivalent basis to Holders of the Securities upon conversion) entitling the 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) h) of this SECTION 11.4Section 12.04) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, warrants or options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued pursuant to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurreddividend reinvestment plan), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of Common Stock held in the treasury of the Company (or, if rights or warrants are issued in respect of all of the shares of Common Stock of the Company, will not exercise any such rights or warrants in respect of Common Stock held in the treasury of the Company.
(3) ). In case outstanding 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 share 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 of the Company.
(c) In case at any time after the date hereof, all or any portion of the Common Stock outstanding 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, conversely in case outstanding at any time after the date hereof, all or any portion of the shares of Common Stock outstanding shall each 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.
(4d) In case at any time after the date hereof, 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, indebtedness or other property assets (including cash or assets or securities, but excluding (i) any rights, warrants or options or warrants referred to in paragraph (2b) of this SECTION 11.4Section 12.04, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1a) of this SECTION 11.4 Section 12.04 and (iv) any dividend or distribution upon a merger or consolidation referred to which SECTION 11.11 appliesin paragraph (e) of this Section 12.04), the Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If any dividend or distribution of the type described in this Section 12.04(d) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would be in effect if such dividend or distribution had not been declared.
(5e) In case at any time after the date hereof, the Company shall, by dividend or otherwise, distribute make a distribution to all holders of its Common Stock consisting exclusively of cash (excluding any cash that is distributed upon a merger or consolidation or a sale or transfer of all or substantially all of the assets of the Company to which SECTION 11.11 appliesSection 12.11 applies or as part of a distribution referred to in paragraph (d) of this Section 12.04) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (IIii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this SECTION 11.4 Section 12.04 has been made (the "combined cash and tender amount") made, exceeds 1012.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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")date, then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders shareholders entitled to receive such distribution by a fraction (iA) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10such 12.5% of such aggregate current market price divided by and (y) the number of shares of Common Stock outstanding on such date fixed for determination and (iiB) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) of the Common Stock on such date fixed for determination. If any dividend or distribution of the type described in this Section 12.04(e) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would be in effect if such dividend or distribution had not been declared.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) that combined together with (Ii) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender offer or exchange offer, by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment adjustment, pursuant to this paragraph (6f) has been made and (IIii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this SECTION 11.4 Section 12.04 has been made (the "combined tender and cash amount") made, exceeds 1012.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 12.04) as of the completion of such tender offer last time (the "Completion DateExpiration Time") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation tenders or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously exchanges could have been 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)(as it may be
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company payable 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 day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction fraction,
(i) the numerator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination and 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes purpose of this paragraph (1Section 15.05(a), 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 StockCompany. 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 Section 15.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options 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 stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (8) of this SECTION 11.4defined below) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rightsrights or warrants, options or warrants (other than any rights, options or warrants (a) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), dividing the Conversion Rate in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be increased by dividing such Conversion Rate rights or warrants by a fraction fraction,
(i) the numerator of which the numerator 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 determination rights or warrants plus the number of shares of Common Stock which that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and Current Market Price, and
(ii) the denominator 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 determination rights or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights or warrants are issued, such increase to and shall become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. For To the purposes extent that shares of this paragraph (2)Common Stock 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 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 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 any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company will not issue any rights, options for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3i) 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, and (ii) in case outstanding shares of Common Stock shall each 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, . Any such increase or reduction, 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.
(4d) 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, stock of the Company or other property evidences of its indebtedness or assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2Section 15.05(b) of this SECTION 11.4hereof, (ii) and excluding any dividend or distribution (x) paid exclusively in cash, except as set forth in paragraphs cash or (5y) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph Section 15.05(a) hereof (1any of the foregoing hereinafter in this Section 15.05(d) called the “Securities”)), then, in each such case (unless the Company elects to reserve such Securities for distribution to the Noteholders upon the conversion of this SECTION 11.4 and (iv) the Notes so that any merger or consolidation such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which SECTION 11.11 appliessuch 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 (as defined in Section 15.05(h)(iv) hereof for such distribution of the Securities)), the Conversion Rate shall be adjusted 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 date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction fraction,
(i) the numerator of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination Record Date less the then fair market value Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and described in a resolution of the Board Resolutionof Directors) on the Record Date of the portion of the assets, shares or evidences of indebtedness Securities so distributed applicable to one share of Common Stock and Stock; and
(ii) the denominator of which shall be such current market price the Current Market Price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Record Date; provided, however, that in the event the then Fair Market Value (as so determined) of the portion of the Securities so distributed 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 Noteholder shall have the right to receive upon conversion the amount of Securities such holder would have received had such holder converted each Note on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion 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. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. 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 15.05 (and no adjustment to the Conversion Rate under this Section 15.05 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 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in 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 15.05 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 15.05(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 Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.05(d) and Sections 15.05(a) and 15.05(b) hereof, any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), 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 or rights or warrants (and any Conversion Rate adjustment required by this Section 15.05(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 or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and 15.05(b) hereof 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 “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Sections 15.05(a) and 15.05(b) hereof, and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of Section 15.05(a) hereof.
(5e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger dividend or consolidation to which SECTION 11.11 applies) distribution in an aggregate amount thatconnection with the liquidation, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company dissolution or any of its subsidiaries for all or any portion winding up of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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"Company, whether voluntary or involuntary), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted increased so that the same Conversion Rate shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed Record Date for determination of the stockholders entitled to receive such dividend or distribution by a fraction fraction,
(i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) average of this SECTION 11.4) the Closing Prices of the Common Stock for the three consecutive trading days ending on the date fixed trading day immediately preceding the Record Date for such determination less an amount equal to dividend or distribution (the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and “Pre-Dividend Sale Price”), and
(ii) the denominator of which shall be equal the Pre-Dividend Sale Price, minus the full amount of such cash dividend or distribution applicable to one share of Common Stock, such adjustment to become effective on the Business Day next following the Record Date for such dividend or distribution; provided that no adjustment to the current market price per share Conversion Rate or the ability of a holder of a Note to convert will be made pursuant to this Section 15.05(e) if the Company provides that holders of Notes will participate in such cash dividend or distribution on an as-converted basis without conversion; provided, further, that if the denominator of the foregoing fraction is less than $1.00 (determined as provided including a negative amount), then in paragraph (8) lieu of this SECTION 11.4) of the foregoing adjustment, adequate provision shall be made so that each holder shall have the right to receive upon conversion, in addition to the Common Stock on issuable upon such date fixed conversion, the amount of cash such holder would have received had such holder converted its Note immediately prior to the Record Date for determinationsuch dividend or distribution. If 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.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value expire and such tender or exchange offer (as determined by amended upon the Board of Directors, whose determination expiration thereof) shall be conclusive and described in a Board Resolution) that combined together with (I) require the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), payment to stockholders of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)having
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION 11.11 Section 1411 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination (the "Reference Date") less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such the current market price per share of the Common StockStock on the Reference Date, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionReference Date.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon as part of a merger or consolidation distribution referred to which SECTION 11.11 appliesin paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section) has been made (the "combined cash and tender amount") ), exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender offer or exchange (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion 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 aggregate amount of any cash distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) as of the completion of such tender offer last time (the "Completion DateExpiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion Date Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 1411 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).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4Section, 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 Average Sales Closing Prices Per Share 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 '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 shall be 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 1% in such rate; PROVIDEDprovided, HOWEVERhowever, 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, for the remaining term of the Securities ____% Debentures or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SECTION 11.4Section, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the The Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be in the best interests of the Company, which determination shall be final and conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Supplemental Indenture (Inacom Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable its Common Stock exclusively in shares of Common Stock, the Conversion Rate in effect at the opening of business on the 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 increased by dividing such Conversion Rate by adjusted so that a fraction of which the numerator shall Holder upon conversion will be the entitled to receive that number of shares of Common Stock outstanding at the close of business on the date fixed for it would have been entitled to after such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting dividend or other distribution if it had converted its Note immediately prior to such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2b) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them 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 paragraph (8) of this SECTION 11.4Section 10.4(g)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 dividing 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 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 shares of Common Stock which the aggregate price of the total number of shares so offered for subscription or purchasewould purchase at the current market price per share (determined as provided in Section 10.4(g)), such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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 each 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 bemaybe, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, cash or assets or securities, but (excluding (i) any rights, warrants or options or warrants referred to in paragraph (2) of this SECTION 11.4Section 10.4(b), (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) cash and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 10.4(a)), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close earlier of business on the date fixed for such distribution or the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) of and the Common Stock on the date fixed for denominator shall be such determination current market price less the then fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolution) board resolution), on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the 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 10.6 (such later date of (i) and (ii) being referred to as the “Reference Date”). For purposes of this Section 10.4(d) and Sections 10.4(a) and 10.4(b), any dividend or distribution for which an adjustment is being made pursuant to this Section 10.4(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 10.4(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 10.4(a) or 10.4(b)), except (1) the record date of such dividend or distribution as defined in this Section 10.4(d) shall be substituted as “the date fixed for the determination of stockholders entitled to receive such distributiondividend 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 10.4(a) and 10.4(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 10.4(a).
(5e) In case the Company shall, by dividend or otherwise, distribute make a distribution to all holders of its Common Stock exclusively in cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to this paragraph (5Section 10.4(e) has been made and (IIii) the aggregate of any cash plus the fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolution) board resolution), as of the expiration of the tender or exchange offer referred to below, of consideration payable in respect of any tender or exchange offer by the Company or any of its subsidiaries a Subsidiary for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to paragraph (6this Section 10.4(e) of this SECTION 11.4 has been made (the "combined cash and tender amount") made, exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) of the Common Stock on as of the Trading Day immediately preceding the record date fixed for the determination of holders of shares of Common Stock stockholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4record date, the Conversion Rate shall be adjusted increased so that the same shall equal the rate price determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of the stockholders of record entitled to receive such distribution by a fraction (i) the numerator of which the denominator shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) of the Common Stock on the such date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over such 10% of such aggregate current market price divided by and (y) the number of shares of Common Stock outstanding on such the record date fixed for determination and (iiiii) the denominator numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date, such adjustment to become effective immediately prior to the opening of business on the day following the record date fixed for determinationthe payment of such distribution.
(6f) In case a successful tender offer or exchange offer, other than an odd lot offer, made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for involve an aggregate consideration consisting of cash and/or property having a fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolutionresolution of the Board) that combined 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 (Ii) the aggregate of the cash plus the fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolutionresolution of the Board), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or any the Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer 12 months and in respect of which no Conversion Rate adjustment pursuant to this paragraph (6Section 10.4(f) has been made and (IIii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer 12 months and in respect of which no Conversion Rate adjustment pursuant to paragraph (5Section 10.4(e) of this SECTION 11.4 has been made (the "combined tender and cash amount") made, exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) as of the completion Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction of such tender offer which the denominator shall be (i) the "Completion Date"product of the current market price per share (determined as provided in Section 10.4(g)) of the Common Stock on the Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of at the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and Expiration Time minus (ii) the denominator of which shall be equal to the product of (A) the current fair market price per share of the Common Stock value (determined as provided in paragraph (8) of this SECTION 11.4aforesaid) as of the Completion Date multiplied by aggregate consideration payable to stockholders based on the acceptance (B) up to any maximum specified in the number of shares of Common Stock outstanding (including any tendered shares) as terms of the Completion Date less the number tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted accepted, up to any such maximum, being referred to as the "“Purchased Shares"”) and the numerator shall be the product of (i) such current market price per share (determined in accordance with Section 10.4(g)) on the Trading Day next succeeding the Expiration Time times (ii) such number of outstanding shares at the Expiration Time less the number of Purchased Shares, such increase to become effective immediately prior to the opening of business on the day following the Expiration Time.
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2Sections 10.4(b), (4d) and (e), (5) or (6) of this SECTION 11.4, the current market price per share of Common Stock on any date in question shall be calculated by the Company and be deemed to be the average of the daily Average Sales Closing Prices Per Share 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 10.4(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 in a manner consistent with any determination of such value for purposes of Section 10.4(d) or (e), 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 10.4(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 not more than 10 on or after the latest (the “Commencement Date”) of (i) the date 20 Trading Days beforebefore 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 thanthan the Trading Day next succeeding the Expiration Time of such tender or exchange offer (or, the earlier of the day in question and the day 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 with respect to for any Other Event (other than the issuance tender or distribution 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 “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 applicable securities relevant market or on from which the applicable securities exchange Closing Price was obtained without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5ii) and (6) of this SECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability when used with respect to any holders subdivision or combination of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To Stock, means the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, first date on which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds trades regular way on such exchange or in such market after the Conversion Price by 105% in connection with an event time at which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effectsuch subdivision or combination becomes effective, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11iii) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant when used with respect to any present or future plan for the reinvestment of dividends, (b) because of a 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 the character described in Rule 13e-4(h)such tender or exchange offer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wilson Holdings, Inc.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION 11.11 Section 1411 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination (the "Reference Date") less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such the current market price per share of the Common StockStock on the Reference Date, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionReference Date.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon as part of a merger or consolidation distribution referred to which SECTION 11.11 appliesin paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section) has been made (the "combined cash and tender amount") ), exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender offer or exchange (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion 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 aggregate amount of any cash distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) as of the completion of such tender offer last time (the "Completion DateExpiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion Date Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 1411 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).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4Section, 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 Average Sales Closing Prices Per Share 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 '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 shall be 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 1% in such rate; PROVIDEDprovided, HOWEVERhowever, 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, for the remaining term of the Securities 4.50% Debentures or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SECTION 11.4Section, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the The Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be in the best interests of the Company, which determination shall be final and conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Supplemental Indenture (Inacom Corp)
Adjustment of Conversion Rate. The Conversion Rate number of shares of Common Stock and number and amount of any other securities and property as hereinafter provided into which each $25.00 principal amount of Securities is convertible (the number of shares of Common Stock issuable at any time, giving effect to the last prior adjustment pursuant to this Section, if any, in exchange for $25.00 principal amount of Securities being hereinafter called the "conversion rate") shall be subject to adjustments adjustment from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class or series of its capital stock of the Company payable in shares of Common Stock, the Conversion Rate conversion rate then in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing multiplying such Conversion Rate conversion rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the 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 distributiondistribution 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2b) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its shares of 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) f) of this SECTION 11.4Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)warrants, the Conversion Rate conversion rate then in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing multiplying such Conversion Rate 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 shares of Common Stock which the aggregate of the subscription price of the total number of shares of Common Stock so offered for subscription or purchasepurchase would purchase at such current market price, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. In the event that all of the shares of Common Stock subject to such rights or warrants have not been issued when such rights or warrants expire, then the conversion rate shall promptly be readjusted to the conversion rate which would then be in effect had the adjustment upon the issuance of such rights or warrants been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights or warrants. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stockshares, the Conversion Rate conversion rate then 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 each be combined into a smaller number of shares of Common Stockshares, the Conversion Rate conversion rate then 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.
(4d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its shares of Common Stock evidences of its indebtedness, shares of any class of capital stock, indebtedness or other property assets (including cash or assets or securities, but excluding any (i) any rights, options rights or warrants referred to in paragraph (2b) of this SECTION 11.4Section, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) not prohibited by Section 1005 hereof and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1a) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection), the Conversion Rate conversion rate shall be adjusted increased so that the same shall equal the rate determined by dividing multiplying the Conversion Rate conversion rate then in effect immediately prior to the close of business on the date day fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share of Common Stock (determined as provided in paragraph (8) f) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of Common Stock less the then fair market value as determined by the Board of Directors of the Company (whose determination shall be conclusive and described in a resolution of the Board of Directors) of the portion of the assets or evidences of indebtedness so distributed allocable to one share of Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to after the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled shall be changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than a subdivision or combination of shares or a stock dividend described in paragraph (a) or paragraph (c) of this Section, or a consolidation, merger or sale of assets described in Section 1206), then and in each such event Holders of Securities shall have the right thereafter to receive convert such distribution times Securities into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or other change, by holders of the number of shares of Common Stock outstanding on into which such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect Securities might have been converted immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determinationreorganization, reclassification or change.
(6f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), b) and (4), (5) or (6d) of this SECTION 11.4Section, the current market price per share of Common Stock common stock on any date shall be calculated by the Company and be deemed to be the average of the daily Average Sales Closing Prices Per Share for the five thirty (30) 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 forty-five (45) days 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 distributionquestion.
(9g) No adjustment in the Conversion Rate conversion rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9g)) would require an increase or decrease of at least one percent 1% in such rate; PROVIDEDprovided, HOWEVERhowever, that the Company may make any such adjustment at its election; and provided, further, that any adjustments which by reason of this paragraph (9g) 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.
(10h) The Company may may, but shall not be required to, make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter termconversion rate, in addition to those required by paragraphs (1a), (2b), (3), (4), (5c) and (6d) of this SECTION 11.4Section, as it the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount purposes or for any period of time if the period is at least twenty (20) days and the other reasons. The Company's Board of Directors shall have made a determination that such increase would be the power to resolve any ambiguity or correct any error in the best interests of the Company, which determination adjustments made pursuant to this Section and its actions in so doing shall be final and conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. .
(i) Whenever the Conversion Rate conversion rate is increased pursuant to the preceding sentence, adjusted as herein provided:
(i) the Company shall give notice compute the adjusted conversion rate and shall prepare a certificate signed by the President and Chief Financial Officer of the increase Company setting forth the adjusted conversion rate and showing in reasonable detail the facts upon which such determination is based and the computation thereof, and such certificate shall forthwith be filed at each office or agency maintained for the purpose of conversion of Securities; and
(ii) a notice stating that the conversion rate has been adjusted and setting forth the adjusted conversion rate shall as soon as practicable be mailed by the Company to the all Holders of Securities in at their last addresses as they shall appear on the manner provided in Section 1.6 at least fifteen (15) days prior Security Register and to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effectTrustee.
(11j) Notwithstanding In the foregoing provisions event that at any time, as a result of any adjustment made pursuant to this SECTION 11.4Article, no adjustment the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the Conversion Rate shall be required to be made (a) upon the issuance of Company other than shares of Common Stock pursuant or to receive any present other securities, the number of such other shares or future plan for securities so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the reinvestment of dividends, (b) because of a tender or exchange offer of provisions contained in this Article with respect to the character described in Rule 13e-4(h)Common Stock.
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments adjustment from time to time as follows:
(1a) In case the Company shall (1) pay or a dividend in shares of Common Stock to all holders of Common Stock, (2) make a dividend distribution in shares of Common Stock to all holders of Common Stock, (3) subdivide the outstanding shares of Common Stock into a greater number of shares of Common Stock or other distribution on any class (4) combine the outstanding shares of capital stock Common Stock into a smaller number of the Company payable in shares of Common Stock, the Conversion Rate in effect at immediately prior to such action shall be adjusted so that the opening holder of business any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this Section 10.06(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of Common Stock, as the case may be, entitling them, for a period commencing on the day following the record date fixed for the determination of stockholders holders of Common Stock entitled to receive such dividend rights or other distribution warrants and expiring not more than sixty (60) days after such record date, to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock), at a price per share less than the then current market price (as determined pursuant to Section 10.06(g)) of Common Stock on such record date, the Conversion Rate shall be increased by dividing such multiplying the Conversion Rate in effect immediately prior to such record date 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distributionrecord date, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), plus the number of shares of Common Stock at any time outstanding shall not include shares held in so offered for subscription or purchase, and 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), 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 denominator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the such record 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 price. Such adjustments shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 effectiverecord date.
(4c) In case the Company shall, by shall dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of Capital Stock of the Company (other than Common Stock), evidences of its indebtedness, shares of any class of capital stockIndebtedness or other assets (other than cash dividends), or other property (including cash shall dividend or assets distribute to all or securities, but excluding (i) any rights, options substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 10.06(b)), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the rate determined increased by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock (as determined pursuant to Section 10.06(g)), on such date and the date fixed for denominator shall be such determination current market price less the then fair market value (as determined in good faith by the Board of Directors, Directors whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the assetsevidences of Indebtedness, shares of Capital Stock, cash and other assets to be distributed or evidences of indebtedness so distributed such subscription rights or warrants applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such record date. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in Section 10.06(b)) (“Rights”) pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 10.06(c), make proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after the record date fixed for such distribution and prior to the determination expiration or redemption of stockholders the Rights shall be entitled to receive upon such distributionconversion, in addition to the shares of Common Stock issuable upon such conversion (the “Conversion Shares”), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the “Distribution Date”), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of shares of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. In the event that the Company implements a stockholders’ rights plan after the date hereof, the Company shall provide that the Holders will receive, in addition to Common Stock, the rights described therein upon conversion of the Securities (whether or not the rights have separated from the Common Stock prior to the time of conversion), subject to the limitations set forth in the stockholders’ rights plan. Any distribution of rights or warrants pursuant to a stockholders’ rights plan complying with the requirements set forth in the two preceding sentences shall not constitute a distribution of rights or warrants pursuant to this Section 10.06(c).
(5d) In case the Company shall, by dividend or otherwise, distribute to all holders at any time make a distribution of its Common Stock cash (excluding any cash that is distributed upon as part of a merger distribution requiring a Conversion Rate adjustment pursuant to subsection (e) below) to all or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to substantially all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4Stock, the Conversion Rate shall be adjusted so that the same shall equal the rate determined increased by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for the determination of the stockholders holders of Common Stock entitled to receive such distribution by a fraction (iA) the whose numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock (as determined pursuant to Section 10.06(g)) on the such record date fixed for such determination less and (B) whose denominator shall be an amount equal to the quotient of (xa) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share of Common Stock less (determined as provided in paragraph b) the lesser of (8) of this SECTION 11.4i) the amount of the distribution per share of Common Stock and (ii) such current market price per share of Common Stock; provided, however, that the Conversion Rate shall not be adjusted pursuant to this Section 10.06(d) to the extent, and only to the extent, such adjustment would cause the Conversion Price to be less than one cent ($0.01); provided further that, if the denominator of such fraction shall be zero, the Conversion Rate shall be instead adjusted so that the Conversion Price is equal to one cent ($0.01). An adjustment to the Conversion Rate pursuant to this Section 10.06(d) shall become effective immediately prior to the opening of business on the day immediately following such date fixed for determinationrecord date.
(6e) In case the Company or any Subsidiary shall distribute cash or other consideration in respect of a tender offer or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an where the sum of the aggregate consideration consisting amount of such cash and/or property having a distributed and the aggregate fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described set forth in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion 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 concluded within the 365-day period preceding the completion of validly tendered or exchanged, and not withdrawn, pursuant to such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders or exchange offer as of the Company's Expiration Time (as defined below) (such tendered or exchanged shares of Common Stock made exclusively in cash within Stock, the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount"“Purchased Shares”) exceeds 10% of the product of the current market price per share of the Common Stock (as determined as provided in paragraph pursuant to Section 10.06(g)) on the trading day next succeeding the last date (8) of this SECTION 11.4such last date, the “Expiration Date”) as of the completion of on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as the "Completion 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) times 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 on the Expiration Date and (b) an amount equal to (i) the number of shares of Common Stock outstanding as of last time (including any tendered sharesthe “Expiration Time”) at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer less (ii) the Purchased Shares and (B) whose denominator is equal to the product of (I) the number of shares of Common Stock outstanding as of the Completion Expiration Time (including all Purchased Shares) and (II) the current market price per share of Common Stock on the Expiration Date. An adjustment, thenif any, and in each such case, to the Conversion Rate pursuant to this Section 10.06(e) shall become effective immediately prior to the opening of business on the day after Business Day following the date Expiration Date. In the event that the Company or a Subsidiary is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Completion DateCompany or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted so that the same shall equal the rate determined by dividing to be the Conversion Rate immediately prior which would then be in effect if such tender offer or exchange offer had not been made. If the application of this Section 10.06(e) to close of business on any tender offer or exchange offer would result in a decrease in the Completion Date by a fraction (i) the numerator of which Conversion Rate, no adjustment shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of made for such tender offer or exchange offer under this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"Section 10.06(e).
(7f) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger In addition to which SECTION 11.11 applies) shall be deemed to involve the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company, from time to time and to the extent permitted by law, may increase the Conversion Rate by any amount for at least twenty (20) days or such longer period as may be required by law, if the Board of Directors has made a determination, which determination shall be conclusive, that such increase would be in the best interests of the Company, provided that the then effective Conversion Price is not less than the par value of a share of Common Stock. The Company shall give notice to the Trustee and cause notice of such increase to be mailed to each Holder of Securities at such Holder’s address as the same appears on the registry books of the Registrar, at least fifteen (15) days prior to the date on which such increase commences. Such Conversion Rate increase shall be irrevocable during such period.
(8) g) For the purpose of any computation under paragraphs subsections (2a), (4b), (5c), (d) or and (6e) of this SECTION 11.4above, the current market price per share of Common Stock on any the date fixed for determination of the stockholders entitled to receive the issuance or distribution requiring such computation (the “Determination Date”) shall be calculated by the Company and be deemed to be the average of the daily Average Sales Closing Sale Prices Per Share for the five ten (10) consecutive Trading Days selected by immediately preceding the Company commencing not more Determination Date; provided, however, that (i) if the “ex” date for any event (other 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) that requires an adjustment to the Conversion Rate pursuant to subsection (a), (b), (c), (d) or (e) above occurs on or after the tenth (10th) Trading Day prior to the Determination Date and prior to the “ex” date for the issuance or distribution requiring such computation, the Closing Sale Price for each Trading Day prior to the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event, (ii) if the “ex” date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to subsection (a), (b), (c), (d) or (e) above occurs on or after the “ex” date for the issuance or distribution requiring such computation and on or prior to the Determination Date, the Closing Sale Price for each Business Day on and after the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event, and (iii) if the “ex” date for the issuance or distribution requiring such computation is on or prior to the Determination Date, after taking into account any adjustment required pursuant to clause (i) or (ii) of this proviso, the Closing Sale Price for each Trading Day on and after the “ex” date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for the purposes of this Section 10.06, whose determination shall be conclusive and described in a Resolution of the Board of Directors) of the evidences of Indebtedness, shares of Capital Stock or other securities or assets being distributed (in the distribution requiring such computation) applicable to one share of Common Stock as of the close of business on the day before such “ex” date. For the purpose of any computation under subsection (e) of this Section 10.06, the current market price per share of Common Stock at the expiration date for the tender offer or exchange offer requiring such computation shall be deemed to be the average of the Closing Sale Price for the ten (10) consecutive Trading Days immediately preceding the Expiration Date; provided, however, that if the “ex” date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Conversion Rate pursuant to subsection (a), (b), (c), (d) or (e) above occurs on or after the expiration time for the tender offer or exchange offer requiring such computation and prior to the day in question, the Closing Sale Price for each Trading Day on or after to the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by 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 paragraphsubsection, the term "ex “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 applicable securities relevant market or on from which the applicable securities exchange Closing Sale Price was obtained without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5ii) and (6) of this SECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability when used with respect to any holders subdivision or combination of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To Stock, means the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, first date on which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds trades regular way on such exchange or in such market after the Conversion Price by 105% in connection with an event time at which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effectsuch subdivision or combination becomes effective, and such notice shall state (iii) when used with respect to any tender offer means the increased Conversion Rate and first date on which the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present trades regular way on such exchange or future plan for in such market after the reinvestment expiration time of dividends, such tender offer (b) because of a tender as it may be amended or exchange offer of the character described in Rule 13e-4(hextended).
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable its Common Stock exclusively in shares of Common Stock, the Conversion Rate in effect at the opening of business on the 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 increased by dividing such Conversion Rate by adjusted so that a fraction of which the numerator shall Holder upon conversion will be the entitled to receive that number of shares of Common Stock outstanding at the close of business on the date fixed for it would have been entitled to after such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting dividend or other distribution if it had converted its Note immediately prior to such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2b) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them 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 paragraph (8) of this SECTION 11.4Section 10.4(g)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 dividing 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 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 shares of Common Stock which the aggregate price of the total number of shares so offered for subscription or purchasewould purchase at the current market price per share (determined as provided in Section 10.4(g)), such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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 each 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 bemaybe, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, cash or assets or securities, but (excluding (i) any rights, warrants or options or warrants referred to in paragraph (2) of this SECTION 11.4Section 10.4(b), (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) cash and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 10.4(a)), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close earlier of business on the date fixed for such distribution or the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) of and the Common Stock on the date fixed for denominator shall be such determination current market price less the then fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolution) board resolution), on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the 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 10.6 (such later date of (i) and (ii) being referred to as the “Reference Date”). For purposes of this Section 10.4(d) and Sections 10.4(a) and 10.4(b), any dividend or distribution for which an adjustment is being made pursuant to this Section 10.4(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 10.4(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 10.4(a) or 10.4(b)), except (1) the record date of such dividend or distribution as defined in this Section 10.4(d) shall be substituted as “the date fixed for the determination of stockholders entitled to receive such distributiondividend 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 10.4(a) and 10.4(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 10.4(a) .
(5e) In case the Company shall, by dividend or otherwise, distribute make a distribution to all holders of its Common Stock exclusively in cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to this paragraph (5Section 10.4(e) has been made and (IIii) the aggregate of any cash plus the fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolution) board resolution), as of the expiration of the tender or exchange offer referred to below, of consideration payable in respect of any tender or exchange offer by the Company or any of its subsidiaries a Subsidiary for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to paragraph (6this Section 10.4(e) of this SECTION 11.4 has been made (the "combined cash and tender amount") made, exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) of the Common Stock on as of the Trading Day immediately preceding the record date fixed for the determination of holders of shares of Common Stock stockholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4record date, the Conversion Rate shall be adjusted increased so that the same shall equal the rate price determined by dividing multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of the stockholders of record entitled to receive such distribution by a fraction (i) the numerator of which the denominator shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) of the Common Stock on the such date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over such 10% of such aggregate current market price divided by and (y) the number of shares of Common Stock outstanding on such the record date fixed for determination and (iiiii) the denominator numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date, such adjustment to become effective immediately prior to the opening of business on the day following the record date fixed for determinationthe payment of such distribution.
(6f) In case a successful tender offer or exchange offer, other than an odd lot offer, made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for involve an aggregate consideration consisting of cash and/or property having a fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolutionresolution of the Board) that combined 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 (Ii) the aggregate of the cash plus the fair market value (as determined in good faith by the Board of DirectorsBoard, whose determination shall be conclusive and described in a Board Resolutionresolution of the Board), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or any the Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer 12 months and in respect of which no Conversion Rate adjustment pursuant to this paragraph (6Section 10.4(f) has been made and (IIii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer 12 months and in respect of which no Conversion Rate adjustment pursuant to paragraph (5Section 10.4(e) of this SECTION 11.4 has been made (the "combined tender and cash amount") made, exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 10.4(g)) as of the completion Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction of such tender offer which the denominator shall be (i) the "Completion Date"product of the current market price per share (determined as provided in Section 10.4(g)) of the Common Stock on the Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of at the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and Expiration Time minus (ii) the denominator of which shall be equal to the product of (A) the current fair market price per share of the Common Stock value (determined as provided in paragraph (8) of this SECTION 11.4aforesaid) as of the Completion Date multiplied by aggregate consideration payable to stockholders based on the acceptance (B) up to any maximum specified in the number of shares of Common Stock outstanding (including any tendered shares) as terms of the Completion Date less the number tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted accepted, up to any such maximum, being referred to as the "“Purchased Shares"”) and the numerator shall be the product of (i) such current market price per share (determined in accordance with Section 10.4(g)) on the Trading Day next succeeding the Expiration Time times (ii) such number of outstanding shares at the Expiration Time less the number of Purchased Shares, such increase to become effective immediately prior to the opening of business on the day following the Expiration Time.
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2Sections 10.4(b), (4d) and (e), (5) or (6) of this SECTION 11.4, the current market price per share of Common Stock on any date in question shall be calculated by the Company and be deemed to be the average of the daily Average Sales Closing Prices Per Share 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 10.4(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 in a manner consistent with any determination of such value for purposes of Section 10.4(d) or (e), 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 10.4(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 not more than 10 on or after the latest (the “Commencement Date”) of (i) the date 20 Trading Days beforebefore 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 thanthan the Trading Day next succeeding the Expiration Time of such tender or exchange offer (or, the earlier of the day in question and the day 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 with respect to for any Other Event (other than the issuance tender or distribution 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 “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 applicable securities relevant market or on from which the applicable securities exchange Closing Price was obtained without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5ii) and (6) of this SECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability when used with respect to any holders subdivision or combination of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To Stock, means the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, first date on which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds trades regular way on such exchange or in such market after the Conversion Price by 105% in connection with an event time at which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effectsuch subdivision or combination becomes effective, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11iii) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant when used with respect to any present or future plan for the reinvestment of dividends, (b) because of a 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 the character described in Rule 13e-4(h)such tender or exchange offer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wilson Holdings, Inc.)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 subdivision or 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any consideration distributed in any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) 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 (4) of this Section or cash distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)Section
Appears in 1 contract
Samples: Indenture (Redback Networks Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case at any time after the date hereof, the Company shall pay pays or make makes a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and (ii) the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), 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 certificates, if any, 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 Company.
(2b) In case at any time after the date hereof, the Company shall issue issues rights, warrants or options or warrants to all or substantially all of the holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 14.4) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 dividing such Conversion Rate by a fraction of which (i) 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 (ii) the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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, conversely in case outstanding shares of Common Stock shall each 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.
(4d) In case the Company shallCompany, by dividend or otherwise, distribute distributes to all or substantially all of the holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property assets (including cash or assets or securities, but excluding (i) any rights, warrants or options or warrants referred to in paragraph (2b) of this SECTION 11.4Section 14.4, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1a) of this SECTION 11.4 Section 14.4 and (iv) any merger or consolidation to which SECTION 11.11 Section 14.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which (i) the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 14.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)of
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the ------------ Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION Section 11.11 ------------- applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the Common Stock on the date fixed for such determination less ------------ the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION Section 11.11 appliesapplies or as part of a ------------- distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION Section 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)------------
Appears in 1 contract
Samples: Indenture (Digital Island Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case at any time after the date of the issuance of the Securities, the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common StockStock of the Company, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock of the Company outstanding at the close of business on the 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock of the Company 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 StockStock of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock of the Company held in the treasury of the Company.
(2) In case at any time after the date of the issuance of the Securities, the Company shall issue rights, options or warrants to all holders of its Common Stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Common Stock of the Company without any action required by the Company or any other person) entitling them to subscribe for or purchase shares of Common Stock of the Company (or securities convertible into Common Stock of the Company) at a price per share (or having a conversion price per share) less than the current market price Average Current Market Price per share (determined as provided in paragraph (8) 9) of this SECTION 11.4Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued pursuant to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurreddividend reinvestment plan), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)fraction
Appears in 1 contract
Samples: Indenture (Xo Communications Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable its Common Stock exclusively in shares of Common Stock, the Conversion Rate in effect at the opening of business on the 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 increased by dividing such Conversion Rate by adjusted so that a fraction of which the numerator Holder upon conversion shall be the entitled to receive that number of shares of Common Stock outstanding at the close of business on the date fixed for it would have been entitled to after such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting dividend or other distribution if it had converted its Security immediately prior to such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 Company.
(2b) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them 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 paragraph (8) of this SECTION 11.4Section 12.04(h)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 dividing 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 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 shares of Common Stock which the aggregate price of the total number of shares so offered for subscription or purchasewould purchase at the current market price per share (determined as provided in Section 12.04(h)), such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) 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 each 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.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, cash or assets or securities, but (excluding (i) any rights, warrants or options or warrants referred to in paragraph (2) of this SECTION 11.4Section 12.04(b), (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) cash and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 appliesSection 12.04(a)), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to the close earlier of business on the date fixed for such distribution or the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.04(h)) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), on the date of consideration payable such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day next following the date fixed for the payment of such distribution. The provisions of this Section 12.04(d) shall not be applicable to an event covered by Section 12.04(k). 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(d).
(e) In case the Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock exclusively in cash, the Company shall, in all cases, at the time of such distribution, make a cash payment to the Holders of all outstanding Securities equal to the amount of cash such Holder would have received with respect to such distribution for all of any its Securities had such Holder converted its Securities into Common Stock immediately prior to the close of business on the date fixed for the determination of the stockholders of record entitled to such distribution.
(f) In case a successful tender or exchange offer, other tender offer than an odd lot offer, made by the Company or any Subsidiary for all or any portion of the Common Stock concluded within shall involve an aggregate consideration having a fair market value (as determined in good faith by the 365-day period preceding Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the completion of last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6as it may be amended) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") that exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.04(h)) as of the completion of such tender offer Common Stock outstanding (including any tendered shares) on the "Completion Date") Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing multiplying the Conversion Rate in effect immediately prior to close of business on the Completion Date Expiration Time by a fraction of which (i) the numerator of which denominator shall be equal to (Ax) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) Section 12.04(h)) of this SECTION 11.4) the Common Stock on the Completion Date multiplied by (II) Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on at the Completion Date less Expiration Time minus (By) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current fair market price per share of the Common Stock value (determined as provided in paragraph (8) of this SECTION 11.4aforesaid) as of the Completion Date multiplied by aggregate consideration payable to stockholders based on the acceptance (B) up to any maximum specified in the number of shares of Common Stock outstanding (including any tendered shares) as terms of the Completion Date less the number tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted accepted, up to any such maximum, being referred to as the "“Purchased Shares").
”) and (7ii) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) the numerator shall be deemed to involve the product of (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5x) or (6) of this SECTION 11.4, the such 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 Average Sales Prices Per Share 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 (determined in question and the day before the "ex" date accordance 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 Section 12.04(h)) on the applicable securities exchange without Trading Day next succeeding the right to receive Expiration Time times (y) such issuance or distribution.
(9) No adjustment in number of outstanding shares at the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason Expiration Time less the number of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; PROVIDEDPurchased Shares, 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days become effective immediately prior to the date opening of business on the increased Conversion Rate takes effect, and such notice shall state day following the increased Conversion Rate and the period during which it will be in effectExpiration Time.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Transwitch Corp /De)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security Note into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)subscription
Appears in 1 contract
Adjustment of Conversion Rate. (1) The Conversion Rate shall be subject to adjustments from time to time as follows:
(1i) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1i), 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 Company.
(2ii) 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 Current Market Price per share (determined as provided in paragraph (8) 3) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2ii), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) 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 each 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 subdivision or 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.
(4iv) 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, stock or other property (including cash or assets or securities, but excluding (iA) any rights, options or warrants referred to in paragraph (2ii) of this SECTION 11.4Section, (iiB) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iiiC) any dividend or distribution referred to in paragraph (11(i) of this SECTION 11.4 Section and (ivD) any consideration distributed in any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price Current Market Price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(iv), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a "Spin-off"), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off; provided, further, that in the event that an underwritten initial 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 be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Sale Price for the Common Stock on the same Trading Day.
(5v) In case the Company shall, by dividend or otherwise, distribute to all holders any of its Subsidiaries shall make a tender offer for Common Stock cash and such tender offer shall expire, then, immediately prior to the opening of business on the day after the last date (excluding any cash the "Expiration Date") tenders could have been made pursuant to such tender offer (as such offer may have been amended), the Conversion Rate shall be increased so that is distributed upon the Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the Expiration Date by a merger or consolidation to fraction of which SECTION 11.11 appliesthe numerator shall be the sum of (x) in an the aggregate amount that, combined together with consideration (I) determined as the sum of the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period preceding the date of payment of such distribution consideration and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal evidenced by an Officers' Certificate delivered to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Trustee thereof) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by consideration) payable to stockholders based on the Company or acceptance (up to any Subsidiary for all or any portion maximum specified in the terms of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6offer) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the last time at which such tenders could have been made on the Expiration Date (the "Expiration Time") (the shares deemed so accepted accepted, up to any such maximum, being referred to as the "Purchased Shares").
) and (7y) The reclassification the product of the number of shares of Common Stock into securities including other than Common Stock outstanding (other than less any reclassification upon a consolidation or merger to which SECTION 11.11 appliesPurchased Shares and excluding any shares held in the treasury of the Company) shall be deemed to involve (a)
(8) For at the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, Expiration Time and the current market price 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 Average Sales Prices Per Share 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 (as determined in question and the day before the "ex" date accordance 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 shall be 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, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), subsection (3), (4), (5) and (6) of this SECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h12.4)
Appears in 1 contract
Samples: Indenture (Exult Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company payable outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing multiplying such Conversion Rate by a fraction fraction, the denominator 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 and the denominator numerator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. 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 If any dividend or make any distribution on shares of Common Stock held in the treasury of the Companytype described in this Section 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.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided defined in paragraph (8) of this SECTION 11.4Section 12.04(h)(ii)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rightsrights or warrants, options or warrants (other than any rights, options or warrants (a) the Conversion Rate shall be adjusted so that the same shall equal the price determined by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), multiplying the Conversion Rate in effect at the opening of business on the day following immediately prior to the date fixed for determination of shareholders entitled to receive such determination shall be increased by dividing such Conversion Rate rights or warrants by a fraction fraction, the denominator of which the numerator 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 determination rights and warrants 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Veritas Software Corp)
Adjustment of Conversion Rate. The Conversion Rate applicable to any series of Securities shall be subject to adjustments from time to time as follows:
(1a) In case at any time during which Securities of any series are Outstanding the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, such 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 have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), 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 certificates, if any, 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 Company.
(2b) In case at any time during which Securities of any series are Outstanding the Company shall issue rights, warrants or 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) h) of this SECTION 11.4Section 1504) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)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 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case at any time during which Securities of any series are Outstanding the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the such 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, conversely in case outstanding shares of Common Stock shall each 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.
(4d) In case at any time during which Securities of any series are Outstanding the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property assets (including cash or assets or securities, but excluding (i) any rights, warrants or options or warrants referred to in paragraph (2b) of this SECTION 11.4Section 1504, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1a) of this SECTION 11.4 Section 1504 and (iv) any merger or consolidation to which SECTION 11.11 Section 1511 applies), the such Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the such Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 1504) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5e) In case at any time during which Securities of any series are Outstanding the Company shall, by dividend or otherwise, distribute make a distribution to all holders of its Common Stock consisting exclusively of cash (excluding any cash that is distributed upon a merger or consolidation or a sale or transfer of all or substantially all of the assets of the Company to which SECTION 11.11 appliesSection 1511 applies or as part of a distribution referred to in paragraph (d) of this Section 1504) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (II2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this SECTION 11.4 Section 1504 has been made made, exceeds ten percent (the "combined cash and tender amount"10%) exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the such Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by dividing the such Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 1504) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SECTION 11.4Section 1504) of the Common Stock on such date fixed for determination.
(6f) In case at any time during which Securities of any series are Outstanding a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) that combined together with (I1) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender offer or exchange offer, by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment adjustment, pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period 12 months preceding the completion expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this SECTION 11.4 Section 1504 has been made (the "combined tender and cash amount") exceeds ten percent (10% %) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 1504) as of the completion of such tender offer last time (the "Completion DateExpiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Completion DateExpiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the such Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the such Conversion Rate immediately prior to the close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (Ax) the product of (IA) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 1504) on the Completion Date date of the Expiration Time multiplied by (IIB) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Completion Date date of the Expiration Time less (By) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SECTION 11.4Section 1504) as of the Completion Date Expiration Time multiplied by (By) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Completion Date Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 1511 applies) shall be deemed to involve (a1) 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 (d) of this Section 1504), and (2) 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 (c) of this Section 1504).
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) or (6f) of this SECTION 11.4Section 1504, 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 Average Sales Closing Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 10 ten (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 `ex' date", ," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the applicable securities exchange or in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the such Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent (1%) in such rate; PROVIDEDprovided, HOWEVERhowever, that any adjustments which by reason of this paragraph (9i) 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.
(10j) The Company may make such increases in the such Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1a), (2b), (3c), (4d), (5e) and (6f) of this SECTION 11.4Section 1504, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for United States federal income tax purposespurposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (j) and its actions in so doing, absent manifest error, shall be final and conclusive.
(k) To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate applicable to any series of Securities by any amount for any period of time if the period is at least twenty (20) days days, the increase is irrevocable during such period, and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the any Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the relevant Holders of Securities in the manner provided in Section 1.6 106 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Infocure Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 subdivision or 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth cash referred to in paragraphs paragraph (5) and (6) of this SECTION 11.4Section, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any consideration distributed in any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4Stock, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on such date fixed -80- for determination plus the amount of the cash distribution per share, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(6) In case a tender offer made by the Company or any Subsidiary shall purchase shares of Common Stock pursuant to a tender or exchange offer for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting (the shares accepted by the Company or such Subsidiary in such offer being referred to as the "Purchased Shares") and the per share amount of cash and/or property having a and fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by consideration included in the Company or any Subsidiary payment for all or any portion of a Purchased Share exceeds the Common Stock concluded within Closing Price Per Share on the 365-day period preceding Trading Day next succeeding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made date (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Expiration Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each last time tenders or surrenders for exchange could have been made pursuant to such case, immediately prior to the opening of business on the day after the date of the Completion Datetender or exchange offer (as it may be amended), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Trading Day next succeeding the Expiration Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) on the Completion Expiration Date multiplied by (II) the total number of shares of Common Stock outstanding on the Expiration Date (including the Purchased Shares and any other shares tendered sharesor surrendered for exchange) on the Completion Date less (B) the combined tender aggregate amount of cash and cash amountfair market value of other consideration to be paid for all Purchased Shares, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section) as of on the Completion Expiration Date multiplied by (B) the total number of shares of Common Stock outstanding on the Expiration Date (including the Purchased Shares and any other shares tendered sharesor surrendered for exchange) as of the Completion Date less the total number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"), such adjustment to become effective immediately prior to the opening of business on the day following the Trading Day next succeeding the Expiration Date.
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 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).
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4Section, 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 Average Sales Closing Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than, 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 the purpose of any computation under paragraph (5) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be the average of the daily Closing Prices Per Share for the first ten Trading Days from and including the first "ex" date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange. For purposes of this paragraph, the term "ex 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 shall be 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, 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 11.4Section, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock stock or issuance of rights or warrants to purchase or subscribe for Common Stock stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the The Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be in the best interests of the Company, which determination shall be final and conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4Section, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, dividends or (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty days, the increase is irrevocable during such period, and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that no such increase shall be taken into account for purposes of determining whether the Closing Price Per Share of the Common Stock equals or exceeds 105% of the Conversion Price in connection with an event which would otherwise be a Change of Control pursuant to Section 14.5. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders in the manner provided in Section 1.6 at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
Appears in 1 contract
Samples: Indenture (Priceline Com Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION Section 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security Note into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)the
Appears in 1 contract
Samples: Indenture (American Greetings Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 subdivision or 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section and any other rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger mergers or consolidation consolidations to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) 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 (4) of this Section or cash distributed upon a merger or consolidation to which SECTION 11.11 Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 Section 12.4 has been made (the "combined cash and tender amount") exceeds 1012.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Samples: Indenture (Analog Devices Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed Determination Date for the determination of stockholders entitled to receive such dividend or other distribution 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 Determination Date and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determinationDetermination Date. 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 Company.
(2) In 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 SECTION 11.4Section 12.4) of the Common Stock on the date fixed Determination Date for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred)distribution, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination Determination Date 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 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 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 Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determinationDetermination 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger or consolidation to which SECTION 11.11 Section 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed Determination Date for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for such determination Determination Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following such Determination Date. If the date fixed Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the determination of stockholders entitled to receive 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 (8) of this Section.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon make a merger or consolidation to which SECTION 11.11 applies) Cash Distribution in an aggregate amount that, combined together with (Ii) the aggregate amount of any other cash distributions to all holders of its Common Stock Cash Distributions made exclusively in cash within the 365-day period 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 (IIii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded Excess Purchase Payment made within the 365-day period 12 months preceding the date of payment of such distribution and in respect of which no adjustment has been made pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") Section 12.4, exceeds 1012.5% of the product Company's Market Capitalization on the Determination Date for such Cash Distribution, then, and in each such case, immediately after the close of business on the Determination Date for such Cash Distribution, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on such Determination Date by a fraction (a) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on such Determination Date less an amount equal to the date for quotient of (1) the determination amount of holders of shares of Common Stock entitled to receive such distribution times excess divided by (2) the number of shares of Common Stock outstanding on such date Determination Date and (b) the "aggregate denominator of which shall be equal to the current market price")price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such Determination Date.
(6) In case the Company or any Subsidiary shall make an Excess Purchase Payment in an aggregate that, combined together with (i) the aggregate amount of any other Excess Purchase Payments made by the Company or any Subsidiary within the 12 months preceding such Excess Purchase Payment in respect of which no adjustment pursuant to this paragraph (6) has been made and (ii) the aggregate amount of any Cash Distributions made within the 12 months preceding such Excess Purchase Payment in respect of which no adjustment pursuant to paragraph (5) of this Section 12.4 has been made, exceeds 12.5% of the Company's Market Capitalization as of the Determination Date, then, and in each such case, immediately after prior to the close opening of business on the day after the tender offer in respect of which such date for determination, subject Excess Purchase Payment is to paragraph (12) of SECTION 11.4be made expires, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed Determination Date for determination of the stockholders entitled to receive such distribution tender offer by a fraction (ia) the numerator of which shall be equal (1) to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4A) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each at such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Determination Date by a fraction less (iB) the numerator amount of such excess and (b) the denominator of which shall be equal to (A) the product of (IX) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) on the Completion as of such Determination Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (BY) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Determination Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares")Determination Date.
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 12.11 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 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 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 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 11.4Section 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 Average Sales Closing Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) 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 the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4, (ii) any dividend or distribution paid in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 and (iv) any merger or consolidation to which SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period 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 of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)number
Appears in 1 contract
Samples: Indenture (Critical Path Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares Ordinary Shares to all holders of Common Stockits Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the 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, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock Ordinary Shares 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 StockOrdinary Shares. The Company will not pay any dividend or make any distribution on shares of Common Stock Ordinary Shares held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock Ordinary Shares entitling them to subscribe for or purchase shares of Common Stock Ordinary Shares at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock Ordinary Shares on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock Ordinary Shares without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 Ordinary Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Ordinary Shares which the aggregate of the offering price of the total number of shares of Common Stock Ordinary Shares 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 Ordinary Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Ordinary Shares so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock Ordinary Shares 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 StockOrdinary Shares. The Company will not issue any rights, options or warrants in respect of shares of Common Stock Ordinary Shares held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders thereof to subscribe for or purchase Ordinary Shares at less than such current market price, and in determing the aggregate offering price of such Ordinary Shares, there shall be taken into account any consideration received by the Company, including 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 of the Company. Rights or warrants distributed by the Company to all holders of Ordinary Shares 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 Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of this Section 12.4 (and no adjustment to the Convertible Rate under this Section 12.4 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 12.4(2). If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in 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 12.4 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, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares 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 12.4(2) in respect of rights, options 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 Securities upon conversion by such holders of Securities to Ordinary Shares and will not expire prior to the maturity of the Securities.
(3) In case outstanding shares of Common Stock Ordinary Shares shall be subdivided into a greater number of shares of Common StockOrdinary 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 each be combined into a smaller number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Ordinary Shares evidences of its indebtedness, shares of any class of capital stock, stock or other property assets (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger mergers or consolidation consolidations to which SECTION 11.11 Section 12.11 applies), then, in each such case (unless the Company elects to reserve such securities, evidence of indebtedness or assets for distribution to the Holders upon the conversion of the Securities so that any such Holder converting Ordinary Shares will receive upon such conversion, in addition to the Ordinary Shares to which such holder is entitled, the amount and kind of such securities, evidence of indebtedness or assets which such Holder would have received if such Holder had converted its Securities into Ordinary Shares immediately prior to the date fixed for determination of stockholders entitled to receive such distribution) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 12.4) of the Common Stock Ordinary Shares on the date fixed for such determination less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock Ordinary Share and the denominator shall be such current market price per share of the Common StockOrdinary Share, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Ordinary Shares cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which SECTION 11.11 Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock Ordinary Shares made exclusively in cash within the 365-day period 12 months preceding the date of payment of such distribution (but not prior to the date of this Indenture) and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this SECTION 11.4 has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the completion of such tender offer (the "Completion Date") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) on the Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 applies) shall be deemed to involve (a)
(8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, 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 Average Sales Prices Per Share 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 applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)Board
Appears in 1 contract
Samples: Indenture (Amdocs LTD)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution 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 and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, 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 have been in effect if such determination date had not been fixed. 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 Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security Note into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurredPerson), 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 shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) 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 each 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 subdivision or 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.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SECTION 11.4Section and any other rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock without any action required by the Company or any other Person, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this SECTION 11.4 Section and (iv) any merger mergers or consolidation consolidations to which SECTION 11.11 Section 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board ResolutionResolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) 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 (4) of this Section or cash distributed upon a merger or consolidation to which SECTION 11.11 Section 10.11 applies) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other all-cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph paragraphs (5) and (6) has been made and (IIii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries Subsidiaries for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph paragraphs (5) and (6) of this SECTION 11.4 Section 12.4 has been made (the "combined cash and tender amount") exceeds 1012.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) of 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, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing 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 distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) of the Common Stock on such date fixed for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration consisting of cash and/or property having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (Ii) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded expiring within the 365-day period preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph paragraphs (5) and (6) has been made and (IIii) the aggregate amount of any cash distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion expiration of such tender offer and in respect of which no adjustment pursuant to paragraph paragraphs (5) and (6) of this SECTION 11.4 Section has been made (the "combined tender and cash amount") exceeds 1012.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) as of the completion of last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (the "Completion Date"as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion DateExpiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Completion DateExpiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the Completion Date date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) on the Completion Date date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4Section 10.04) as of the Completion Date Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date Expiration Time less the number of all shares validly tendered and not withdrawn as of the Completion Date(the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which SECTION 11.11 Section 10.11 applies) shall be deemed to involve (a)
(8) For the purpose ) a distribution of any computation under paragraphs (2), (4), (5) or (6) of this SECTION 11.4, the current market price per share such securities other than Common Stock to all holders of Common Stock on any (and the effective date of such reclassification shall be calculated by the Company and be deemed to be "the average of the daily Average Sales Prices Per Share date fixed 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 determination 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 stockholders entitled to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be 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, 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 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to "the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this SECTION 11.4, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan fixed for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)such
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