Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant. (b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor, (i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above), (ii) any cash paid or payable otherwise than as a cash dividend, or (iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.
Appears in 5 contracts
Samples: Warrant Repricing Agreement (Aradigm Corp), Warrant Repricing Agreement (Aradigm Corp), Securities Purchase Agreement (Aradigm Corp)
Adjustment of Exercise Price. (a) In per Share and number of Warrant Shares issuable on exercise of Warrants. a Prior to the event of changes in the outstanding Common Stock of the Company by reason of stock dividendsExpiration Date, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, classper Share, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in some cases the number of Exercise Warrant Shares issuable upon exercise of each Warrant, are subject to this Warrant.
(b) If at any time or adjustment from time to time in the holders manner provided in this section 12 upon the occurrence of any of the events enumerated in this section~12. b In the event that the Corporation shall at any time after the Distribution Date: i0 declare a dividend or make a distribution on any series of its Common Stock of the Company (or any in shares of stock any series of its Common Stock; ii0 subdivide or reclassify shares of any series of its outstanding Common Stock into a greater number of shares; iii0 combine shares of any series of its outstanding Common Stock into a smaller number of shares; iv0 pay a dividend or make a distribution on any series of its Common Stock in shares of any series of its Capital Stock other than Common Stock; or v0 issue by reclassification of any series of its Common Stock shares of any series of its Capital Stock; then each Warrant outstanding on the record date for such dividend or distribution or on the effective date of such subdivision, reclassification or combination shall thereafter entitle the holder thereof to receive the aggregate number and kind of shares, other securities at the time receivable upon the exercise of this Warrant) shall and property which, if such Warrant had been exercised immediately prior to such time, such holder would have received owned or have become entitled to receive, without payment therefor,
(i) Common Stock or any shares receive by virtue of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash such dividend, or
(iii) Common Stock distribution, subdivision, reclassification or additional stock combination and, if after such dividend, distribution, subdivision, reclassification or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than the Warrants continue to represent the right to purchase only shares of Common Stock pursuant to Section 5(a) above(and not other securities or property), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, Exercise Price per Share shall be entitled adjusted to receive, in addition be an amount equal to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.product of:
Appears in 4 contracts
Samples: Warrant Agreement (Insignia Esg Holdings Inc), Warrant Agreement (Insignia Esg Holdings Inc), Warrant Agreement (Insignia Esg Holdings Inc)
Adjustment of Exercise Price. (a) In If and whenever the event Corporation shall issue, sell, distribute or otherwise transfer any shares of changes in the outstanding its Common Stock (including treasury shares), other than as the result of exercises of options, warrants or conversion rights outstanding on the Company by reason date hereof, for a consideration per share less than the Exercise Price in effect immediately prior to the time of stock dividendssuch issue, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidationssale, or the liketransfer then, the number and class of shares available under the Warrant in the aggregate and upon such event the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior reduced to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
price determined by dividing (i) Common Stock or any shares an amount equal to the sum of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(ax) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereuponoutstanding immediately prior to such event (including as outstanding all shares of Common Stock issuable upon conversion of convertible securities of the Corporation, except for Series A-1 Preferred Stock issued pursuant to the Agreement to Provide Guarantee dated the date hereof (the "GUARANTEE AGREEMENT"), and without payment issuable upon the exercise of options and warrants of the Corporation, except for this Warrant and other warrants issued pursuant to the Guarantee Agreement and the Securities Purchase Agreement dated July 30, 1999 (the "PURCHASE AGREEMENT")) multiplied by the then existing Exercise Price and (y) the consideration, if any, received by the Corporation upon such event, by (ii) the total number of shares of Common Stock outstanding immediately after such event (including as outstanding all shares of Common Stock issuable upon conversion of convertible securities of the Corporation, except for Series A-1 Preferred Stock issued pursuant to the Guarantee Agreement, and issuable upon the exercise of options and warrants of the Corporation, except for this Warrant and other warrants issued pursuant to the Guarantee Agreement and the Purchase Agreement, provided that, for this purpose, in computing the number of shares of Common Stock issuable upon conversion of convertible securities or exercise of warrants or options, any additional adjustments in the conversion price of such convertible securities or in the exercise price of such warrants or options resulting from the transaction which gave rise to the adjustment in the Exercise Price being calculated shall be taken into account). For purposes of this SECTION 3(A), the following paragraphs (1) to (6), inclusive, shall also be applicable:
(1) In the case of the issuance of Common Stock for cash, the consideration therefor, shall be deemed to be the amount of stock cash paid therefor after deducting therefrom any discounts, commissions, fees, or other expenses allowed, paid, or incurred by the Corporation for any underwriting or placement or otherwise in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors, irrespective of any accounting treatment.
(3) In the case of the issuance of (x) options or warrants to purchase or rights to subscribe for Common Stock, (y) securities by their terms convertible into or exchangeable for Common Stock or (z) options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities:
(A) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such options or warrants to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options, warrants, or rights were issued and for a consideration equal to the consideration (determined in the manner provided in subdivisions (1) and (2) above), if any, received by the Corporation upon the issuance of such options, warrants, or rights plus the minimum purchase price provided in such options, warrants, or rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities or upon the exercise of options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities and property subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options, warrants, or rights were issued and for a consideration equal to the consideration received by the Corporation for any such securities and related options, warrants, or rights (including excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by the Corporation upon the conversion or exchange of such securities or the exercise of any related options, warrants, or rights (the consideration in each case to be determined in the cases referred manner provided in subdivisions (1) and (2) above); and
(C) on any change in the number of shares of Common Stock deliverable upon exercise of any such options, warrants, or rights or conversions of or exchange for such convertible or exchangeable securities or any change in the consideration to be received by the Corporation upon the exercise of any such options, warrants, or rights or conversions of or exchange for such convertible or exchangeable securities, the Exercise Price shall forthwith be readjusted to the Exercise Price that would have applied had the adjustment (made upon the issuance of such options, rights, or securities not converted prior to such change or options or rights related to such securities not converted prior to such change) been made upon the basis of such change.
(4) In the case of issuance of stock appreciation rights, phantom stock options, or any other contractual arrangements ("SAR'S") that provide payments or benefits related to the value of securities ("BASE SECURITIES") of the Company, the equivalent number of Base Securities shall be deemed to be issued and outstanding, except that such Base Securities shall not be deemed to be outstanding when calculating an adjustment to the Exercise Price otherwise required hereunder as a result of the future issuance of other securities. The issuance price of any Base Security treated as issued pursuant to this subdivision (4) shall be deemed to be the base value of the Base Security established in clauses the SAR for purposes of calculating payments due under the SAR as the result of appreciation of the Base Security. For example, if an employee is granted the right to receive cash equal to the future value of a specified number of shares of Common Stock in excess of $3.00 per share, for the purposes of this SECTION 3 such shares of Common Stock would be deemed to be issued at $3.00 per share.
(5) In the case of any future contingent agreement to issue securities, the securities shall be deemed to be outstanding at the time such agreement is entered into (except that such securities shall not be deemed to be outstanding when calculating an adjustment to the Exercise Price otherwise required hereunder as a result of the future issuance of other securities). The sale price of such securities and the sale price of any securities actually issued at the time of such agreement shall be determined for purposes of this SECTION 3 by dividing the sum of the number of securities actually issued and the securities issuable upon satisfaction of the contingency by the total consideration received by the Corporation in connection with such agreement. If the number of securities contingently issuable is not determinable until the contingency occurs, the maximum number of securities issuable upon such occurrence shall be deemed issued at the time of such agreement. If the maximum number of securities is not determinable until the contingency occurs, then upon occurrence of the contingency all securities issued pursuant to the agreement shall be deemed to have been issued at the time the agreement was entered into for the total consideration received by the Corporation pursuant to the agreement and, if such consideration per share of Common Stock is less than the Exercise Price at the time of such agreement, a retroactive adjustment to the Exercise Price shall be made.
(6) The Corporation is a party to that certain Agreement and Plan of Merger and Reorganization dated as of July 1, 1999 (the "LOCKWOOD AGREEMENT") by and among the Corporation, Lockwxxx Acquisitions Corp., Lockwood Sign Group and xxx xxareholders of Lockwood Xxxx Xxoup (the "LOCKWOOD SHAREHOLDERS"). The issuance to xxx Lockwood Shaxxxxxxxxs of (i) 415,000 shares of Common Stock pursuanx xx Section 1.4(a)(ii) of the Lockwood Agreement and (ii) up to 285,000 shares of Commxx Xxxxx pursuant to Section 1.9(a), (b) and (iiic) above) which such Holder would hold on of the date Lockwood Agreement shall not give rise to an adjustment of such exercise had he been the holder Exerxxxx Price under Section 3 hereof; provided, however, if the Corporation issues additional shares of record of such Common Stock as to the Lockwood Shareholders under Section 1.4(c) or pays additixxxx xxnsideration to the Lockwood Shareholders under Section 1.9(d) of the Lockwoox Xxxxxxent (in shares of Common Stock), the issuaxxx xx xhares of Common Stock under Section 1.4(c) and the issuance of shares of Common Stock and the payment of consideration (in shares of Common Stock or otherwise) under Section 1.9(d) shall be considered to be events which may give rise to an adjustment of the Exercise Price under Section 3, as follows:
(A) In the case of the issuance of additional shares of Common Stock under Section 1.4(c) of the Lockwood Agreement, each share of Common Stock issued xxxxx Xection 1.4(c) of the Lockwood Agreement shall be considered issued for the Avexxxx Xxxding Price (as defined in the Lockwood Agreement) of the Common Stock for the last 31 calendar days of the Measuring Period (as defined in the Lockwood Agreement).
(B) In the case of the paymxxx xx xdditional shares of Common Stock under Section 1.9(d) of the Lockwood Agreement, each share of Common Stock issued xxxxx Xection 1.9(d) of the Lockwood Agreement shall be considered issued for the Avexxxx Xxxding Price (as defined in the Lockwood Agreement) during the last 31 days of the Contingent Measuring Period (as defined in the Lockwood Agreement).
(b) If, at any time, the number of xxxxxx xf Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date on which fixed for the determination of holders of Common Stock received or became entitled to receive such stock dividend, subdivision, or split-up, the Exercise Price shall be proportionately decreased so that the number of shares of Common Stock issuable on exercise of this Warrant pursuant to SECTION 2 above shall be increased in proportion to such increase in outstanding shares.
(c) If, at any time, the number of shares of Common Stock outstanding is decreased by a combination of the outstanding shares of Common Stock, then, following the record date for such combination, the Exercise Price shall be appropriately increased so that the number of shares of Common Stock issuable on exercise of this Warrant pursuant to SECTION 2 above shall be decreased in proportion to such decrease in outstanding shares.
(d) If, at any time, the Corporation shall fix a record date for the making of a dividend or distribution to the holders of its Common Stock of assets (other than regular cash dividends out of earned surplus), evidences of its indebtedness, subscription rights, or warrants, then in each such case the Exercise Price shall be reduced to the amount determined by multiplying (i) the Exercise Price in effect immediately prior to such record date by (ii) a fraction, of which the numerator shall be the total number of outstanding shares of Common Stock (including as outstanding all other additional stock shares of Common Stock issuable upon conversion of convertible securities of the Corporation, except for Series A-1 Convertible Preferred Stock issued pursuant to the Guarantee Agreement, and issuable upon the exercise of warrants, except for this Warrant and other warrants issued pursuant to the Guarantee Agreement and the Purchase Agreement, and options of the Corporation) multiplied by the current Exercise Price, less the fair market value (as determined in good faith by the Company's Board of Directors) of the portion of the assets or evidences of indebtedness to be distributed or of such subscription rights or warrants, and of which the denominator shall be the total number of outstanding shares of Common Stock on such record date (including as outstanding all shares of Common Stock issuable upon conversion of convertible securities of the Corporation, except for Series A-1 Convertible Preferred Stock issued pursuant to the Guarantee Agreement, and propertyissuable upon the exercise of warrants, except for this Warrant and other warrants issued pursuant to the Guarantee Agreement and the Purchase Agreement, and options of the Corporation) multiplied by the current Exercise Price. Such adjustment shall be made successively whenever such a record date is fixed and shall become effective immediately after the record date for the determination of shareholders entitled to receive the distribution.
(e) Whenever the Exercise Price shall be adjusted as provided in this SECTION 3, the Corporation shall forthwith deliver to the holder hereof a statement, signed by its chief financial officer, showing in detail the facts requiring such adjustment and the Exercise Price and number of shares of Common Stock subject hereto, such statement to be sent by first-class certified mail, return receipt requested, postage prepaid.
Appears in 2 contracts
Samples: Warrant Agreement (Display Technologies Inc), Warrant Agreement (Display Technologies Inc)
Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and No adjustment to the Exercise Price shall ------------------------------------------ will be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
made (bi) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of any warrants, options or convertible securities granted, issued and outstanding on the date of issuance of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
; (ii) upon the grant or exercise of any cash paid stock or payable otherwise than options which may hereafter be granted or exercised under any employee benefit plan, stock option plan or restricted stock plan of the Company now existing or to be implemented in the future, so long as the issuance of such stock or options is approved by a cash dividend, or
majority of the independent members of the Board of Directors of the Company or a majority of the members of a committee of independent directors established for such purpose; (iii) Common Stock or additional stock or other securities or property upon the exercise of the Warrants; (including cashiv) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock to be issued pursuant to Section 5(athe Convertible Note Purchase Agreement, dated December 12, 2000, by and among certain investors and the Company, (v) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereuponto be issued pursuant to the Convertible Note Purchase Agreement, dated July 26, 2001, by and without payment among certain investors and the Company, (vi) shares of any additional consideration thereforCommon Stock to be issued pursuant to the Convertible Note Purchase Agreement dated September 21, 2001, by and among certain investors and the amount Company, (vii) shares of stock Common Stock to be issued pursuant to the Convertible Note Purchase Agreement, dated November 7, 2001, by and among certain investors and the Company, (viii) shares of Common Stock to be issued pursuant to the Agreement and Release, dated March 1, 2001, by and among the Company, American Industries, Inc. and various other securities and property (including cash in the cases referred to in clauses (ii) parties thereto and (iiiix) aboveshares of Common Stock to be issued pursuant to the Second OEM Amendment, dated October 25, 2000, between the Company and Artifex Software, Inc. Subdivision or Combination of Common Stock. If the Company at any time ----------------------------------------------- subdivides (by any stock split, stock dividend, recapitalization, -------- reorganization, reclassification or otherwise) which such Holder would hold on the shares of Common Stock -------- acquirable hereunder into a greater number of shares, then, after the date of ------ record for effecting such exercise had he been subdivision, the holder of record of Exercise Price in effect immediately -- prior to such Common Stock as of subdivision will be proportionately reduced. If the date on which holders Company at any time combines (by reverse stock split, recapitalization, reorganization, reclassification or otherwise) the shares of Common Stock received or became entitled acquirable hereunder into a smaller number of shares, then, after the date of record for effecting such combination, the Exercise Price in effect immediately prior to receive such shares or all other additional stock and other securities and property.combination will be proportionately increased. -Adjustment in
Appears in 2 contracts
Samples: Warrant Agreement (Imaging Technologies Corp/Ca), Warrant Agreement (Imaging Technologies Corp/Ca)
Adjustment of Exercise Price. Number and Kind of Shares or Number of Rights The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall, at any time after the date of changes this Agreement, (A) declare a dividend on the Common Shares payable in Common Shares, (B) subdivide or split the outstanding Common Stock Shares into a greater number of shares, (C) combine or consolidate the outstanding Common Shares into a smaller number of shares or effect a reverse stock split, or (D) issue any shares of its capital stock in a reclassification of the Common Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) or division, except as otherwise provided in this Section 11(a) and in Section 7(e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, consolidation, division, combination or reclassification shall be proportionately adjusted so that the holder of Rights exercised after such time shall be entitled to receive, upon payment of the Exercise Price then in effect, the aggregate number and kind of Common Shares or shares of capital stock, as the case may be, which, if such Rights had been exercised immediately prior to such record or effective date and at a time when the Common Shares (or other capital stock, as the case may be) transfer books of the Company were open, such holder would have acquired upon such exercise and, in addition, would have been entitled to receive with respect to such Common Shares or shares of capital stock, as the case may be, by reason virtue of stock dividendssuch dividend, subdivision, split-ups, recapitalizationsconsolidation, reclassificationscombination or reclassification, combinations or exchanges of shares, separations, reorganizations, liquidations, or the likeat an aggregate Exercise Price (i.e., the product of the number of Common Shares or shares of capital stock purchased on exercise, as the case may be, multiplied by the Exercise Price) equal to the aggregate Exercise Price prior to such dividend, subdivision, split, consolidation, combination, division or reclassification.
(ii) Subject to Sections 11(a)(iii) and class 25 hereof, in the event that any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, then proper provision shall be made so that each holder of shares available one Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise of each Right and upon payment of the then-current Exercise Price for one Common Share, in accordance with the terms of this Agreement, not one Common Share, but rather such number of Common Shares as shall equal the result obtained by (x) multiplying the then-current Exercise Price by the number of Common Shares for which one Right is then exercisable and (y) dividing that product by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date such Person, alone or together with its Affiliates and Associates, became an Acquiring Person. For example, assuming the current market price of the Common Shares is $20.00 per share and assuming no other adjustments are required under the Warrant terms of this Agreement, after any Person becomes an Acquiring Person, a holder of one Right upon exercise thereof and payment of $45.00 to the Company shall receive 4.5 Common Shares. $45.00x1 (---------) .5x$20.00
(iii) Subject to Section 25 hereof, in the event that the number of Common Shares which are authorized by the Company's articles of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Rights shall not be exercisable for Common Shares, but proper provision shall be made so that each holder of one Right, except as provided in section 7(e) hereof, shall thereafter have a right to receive, upon exercise of each Right and upon payment of the price for one Common Share determined pursuant to subparagraph (ii), not one Common Share, but rather such number of Common Stock Equivalents (or, in the judgment of the Board of Directors, such combination of Common Stock Equivalents and Common Shares) as shall equal the number of Common Shares determined pursuant to subparagraph (ii).
b. In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Shares entitling them to subscribe for or purchase (for a limited period of time after such record date) Common Shares or securities convertible into Common Shares at a price per Common Share (or having a conversion price per share, if a security convertible into Common Shares) less than the current market price (as determined pursuant to Section 11(d) hereof) per Common Share on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Common Shares outstanding on such record date, plus the number of Common Shares which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which shall be the number of Common Shares outstanding on such record date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Common Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights, options or warrants are not so issued, the Exercise Price shall be correspondingly adjusted to give be the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder Price which would have owned then be in effect if such record date had the Warrant not been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrantfixed.
(b) If at any time or from time c. In case the Company shall fix a record date for a distribution to time the all holders of Common Stock of Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (or any shares of other than a regular quarterly cash dividend), assets, stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend payable in Common Shares) or subscription rights, options or warrants (excluding those referred to in or excluded pursuant to Section 11(b) hereof), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per one Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes) of the portion of the cash, assets, stock or evidences of indebtedness so to be distributed or of such subscription rights, options or warrants applicable to one Common Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per one Common Share. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
d. For the Purposes of any computation hereunder, the "current market price" per Common Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per Common Share is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution covered on such Common Shares payable in section 5(asuch Common Shares or securities convertible into such Common Shares (other than the Rights) above),
or (ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoffsubdivision, split, consolidation, combination or reclassification of such Common Shares and prior to the expiration of 30 Trading Days after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, split, consolidation, division, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof will"current market price" shall be appropriately adjusted at the discretion of the Board of Directors of the Company to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration thereforcase no such sale takes place on such day, the amount average of stock the closing bid and other securities and property (including cash asked prices, regular way, in either case as reported in the cases referred principal consolidated transaction reporting system with respect to in clauses (ii) and (iii) above) which such Holder would hold securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Shares, the fair value of such exercise had he been shares on such date as determined in good faith by the holder Board of record of such Common Stock as Directors of the date Company shall be used and shall be binding and conclusive for all purposes. The term "Trading Day" shall mean a day on which holders the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the transaction of business or, if the Common Stock received Shares are not listed or became entitled admitted to receive such shares trading on any national securities exchange, a Business Day. If the Common Shares are not publicly held or not so listed or traded, "current market price" per share shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all other additional stock and other securities and propertypurposes.
Appears in 2 contracts
Samples: Rights Agreement (Tasty Baking Co), Rights Agreement (Tasty Baking Co)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving corporation), split-upsexcept as otherwise provided in this Section 11(a) and Section 7(e) hereof, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares as of capital stock issuable on such date, shall be proportionately adjusted so that the Holder holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the Warrant been exercised consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of to, any adjustment in the number of Exercise Shares subject required pursuant to this WarrantSection 11(a)(ii) hereof.
(bii) If at Subject to the provisions of Section 24 hereof, in the event
(A) any time Person, alone or from time together with its Affiliates and Associates, shall become an Acquiring Person, or
(B) the Board of Directors of the Company, by majority vote, shall declare any Person to time be an Adverse Person, after (x) a determination that such Person, alone or together with its Affiliates and Associates, has become the holders Beneficial Owner of 10% or more of the outstanding shares of Common Stock of the Company and (y) a determination by the Board of Directors, after reasonable inquiry and investigation, including such consultation, if any, with such persons as such directors shall deem appropriate, that (a) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or will cause the Company to repurchase the Common Stock of the Company beneficially owned by such Person or to cause pressure on the Company to take action or enter into a transaction or series of transactions which would provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company and its shareholders, but for the actions and possible actions of such Person, would not be served by taking such action or entering into such transactions or series of transactions at that time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company s ability to maintain its competitive position) on the business or prospects of the Company. No delay or failure by the Board of Directors to declare a Person to be an Adverse Person shall in any way waive or otherwise affect the power of the Board of Directors subsequently to declare a Person to be an Adverse Person. In the event that the Board of Directors should at any time determine, upon reasonable inquiry and investigation, including consultation with such Persons as the Board of Directors shall deem appropriate, that such Person has not met or complied with any condition specified by the Board of Directors, the Board of Directors may at any time thereafter declare such Person to be an Adverse Person pursuant to the provisions of this Section 11(a)(ii)(B), then, and in each such case, promptly following any such occurrence (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company as shall equal the result obtained by (x) multiplying the then current Exercise Price by the then number of one ten-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and dividing that product by (y) 50% of the Fair Market Value per one ten- thousandth of a share of the Preferred Stock (determined pursuant to Section 11(d)) on the date of the occurrence of a Section 11(a)(ii) Event (such number of shares being referred to as the "Adjustment Shares").
(iii) In lieu of issuing any shares of stock Preferred Stock in accordance with Section 11(a)(ii) hereof, the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, may, and in the event that the number of shares of Preferred Stock which are authorized by the Company s Articles of Organization but not outstanding or reserved for issuance for purposes other securities at than upon exercise of the time receivable Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, shall: (A) determine the excess of (X) the Fair Market Value of the Adjustment Shares issuable upon the exercise of this Warranta Right (the "Current Value") shall over (Y) the Exercise Price attributable to each Right (such excess being referred to as the "Spread") and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price, (1) cash, (2) a reduction in the Exercise Price, (3) Preferred Stock Equivalents which the Board of Directors of the Company has deemed to have received or become entitled to receive, without payment therefor,
(i) the same value as shares of Common Stock of the Company, (4) debt securities of the Company, (5) other assets of the Company or (6) any combination of the foregoing which, when added to any shares of stock Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the
(b) If the Company shall fix a record date for the issuance of rights, options or other warrants to all holders of Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities which are at any time directly having the same or indirectly more favorable rights, privileges and preferences as the shares of Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or exchangeable Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for Common Stocksubscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such rights or options warrants are not so issued, the Exercise Price shall be adjusted to subscribe forbe the Exercise Price which would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), purchase or otherwise acquire any of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one ten- thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one ten-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one ten- thousandth of a share of Preferred Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, split-upand prior to the expiration of the 30 Trading Day period after the ex- dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration thereforcase no such sale takes place on such day, the amount average of stock the closing bid and other securities and property (including cash asked prices, regular way, in either case as reported in the cases referred principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in clauses (ii) and (iii) above) the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Holder would hold security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the date of such exercise had he been last quoted price (or, if not so quoted, the holder of record of such Common Stock as average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.no bids for such
Appears in 2 contracts
Samples: Shareholder Rights Agreement (Wyman Gordon Co), Shareholder Rights Agreement (Wyman Gordon Co)
Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above)distribution,
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Aradigm Corp), Warrant Agreement (Aradigm Corp)
Adjustment of Exercise Price. Number and Kind of Shares or Number of Rights. The Exercise Price, the number and kind of securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company at any time after the date hereof (A) declares a dividend on the Preferred Stock payable in shares of changes in Preferred Stock; (B) subdivides the outstanding Common Preferred Stock; (C) combines the outstanding Preferred Stock into a smaller number of shares; or (D) issues any shares of its capital stock in a reclassification of Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving entity), split-upsexcept as otherwise provided in this Section 11(a), recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and then the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the Holder case may be, issuable on such date upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time becomes entitled to receive, upon payment of the Exercise Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event may the Warrant been exercised prior consideration to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable paid upon the exercise of one Right be less than the aggregate par value of the shares (or fractions thereof) of capital stock of the Company issuable upon exercise of one Right. If an event occurs that would require an adjustment under both this WarrantSection 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall have received or become entitled be in addition to, and shall be made prior to, any adjustment required pursuant to receive, without payment therefor,
(iSection 11(a)(ii) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),hereof.
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant Subject to Section 5(a) above23 and Section 24 hereof, in the event that any Person, alone or together with its Related Persons, becomes an Acquiring Person (the first occurrence of such event, the “Flip-In Event”), unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then proper provision shall be made so that promptly following the Redemption Period, each holder of a Right (except as provided below and in each such case, Section 7(e) hereof) shall thereafter have the Holder hereof will, upon the exercise of this Warrant, be entitled right to receive, in addition upon exercise thereof and payment of an amount equal to the then current Exercise Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, a number of shares of Common Stock receivable thereuponequal to the result obtained by (A) multiplying the then current Exercise Price by the number of one one-thousandths of a share of Preferred Stock for which a Right was or would have been exercisable immediately prior to the Flip-In Event, whether or not such Right was then exercisable (and, following such Flip-In Event, references to the “Exercise Price” shall thereafter mean such product for each Right and without payment for all purposes of any additional consideration therefor, this Agreement except to the amount of stock and other securities and property (including cash extent set forth in the cases referred to in clauses (ii) Section 13 hereof); and (iiiB) above) which such Holder would hold dividing that product by 50% of the Current Market Price of Common Stock on the date of such Flip-In Event (such number of shares, the “Adjustment Shares”); provided, however, that in connection with any exercise had he been the effected pursuant to this Section 11(a)(ii), no holder of record of such Rights shall be entitled to receive Common Stock as (or other shares of capital stock of the date on which holders Company) that would result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of 10% or more of the shares of Common Stock received then-outstanding (or, in the case of an Existing Holder, becoming the Beneficial Owner of one or became more additional shares of Common Stock (or one or more other shares of capital stock of the Company)). If a holder would, but for the proviso in the immediately preceding sentence, be entitled to receive upon exercise of a Right a number of shares that would otherwise result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of 10% or more of the shares of Common Stock then-outstanding (or, in the case of an Existing Holder, becoming the Beneficial Owner of one or all more additional shares of Common Stock (or one or more other additional shares of capital stock of the Company)) (such shares, the “Excess Shares”), then in lieu of receiving such Excess Shares and to the extent permitted by law or orders applicable to the Company, such holder will be entitled to receive only an amount in cash or, at the election of the Company, a note or other securities evidence of indebtedness maturing within nine months with a principal amount, equal to the Current Market Price of a share of Common Stock at the Close of Business on the Trading Day following the date of exercise multiplied by the number of Excess Shares that would otherwise have been issuable to such holder. The Company shall provide the Rights Agent with written notice of the identity of any such Acquiring Person, Related Person or the nominee or transferee of any of the foregoing, and propertythe Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Related Person or the nominee or transferee of any of the foregoing, unless and until it has received such notice.
Appears in 1 contract
Adjustment of Exercise Price. Number and Kind of Shares or Number of Rights. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to the provisions of Section 24 hereof, in the outstanding Common event any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, then, promptly following any such occurrence (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or as shall equal the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.result obtained by
Appears in 1 contract
Adjustment of Exercise Price. Number of Shares Issuable Upon Exercise of Rights or Number of Rights. The Exercise Price, the number and kind of securities that may be purchased upon exercise of a Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event that the Company shall at any time after the Close of changes Business on the Record Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date (A) declare or pay any dividend on the Preferred Shares payable in Preferred Shares or Voting Shares, (B) subdivide the outstanding Common Stock Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of Preferred Shares or (D) issue Preferred Shares or Voting Shares in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving corporation), split-upsthen, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the likeand upon each such event, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Preferred Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable issuable upon the exercise of this Warrant) a Right on the date of such event shall have received be proportionately adjusted so that the holder of any Right exercised on or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each after such case, the Holder hereof will, upon the exercise of this Warrant, date shall be entitled to receive, upon the exercise thereof and payment of the Exercise Price, the aggregate number and kind of Preferred Shares or other securities or other property, as the case may be, that, if such Right had been exercised immediately prior to such date and at a time when such Right was exercisable and the transfer books of the Company were open, such holder would have owned upon such exercise and would have been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to the number of shares of Common Stock receivable thereuponto, and without payment of shall be made prior to, any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred adjustment required pursuant to in clauses Section 11(a)(ii) hereof.
(ii) In the event (a "Section 11(a)(ii) Event") that a 20% Ownership Date shall have occurred and neither the Redemption Date nor the Expiration Date shall have occurred prior to the tenth Business Day following such 20% Ownership Date, then, and effective as of the end of such tenth Business Day, proper provision shall be made so that except as provided in Section 7(d) hereof, each holder of a Right shall thereafter have the right to receive, upon the exercise thereof in accordance with the terms of this Agreement and payment of the then current Exercise Price, in lieu of the securities or other property otherwise purchasable upon such exercise, such number of Common Shares of the Company as shall equal the result obtained by multiplying the then current Exercise Price by the then number of one-hundredths of a Preferred Share for which a Right was exercisable (iii) above) which such Holder would hold on or, if the Distribution Date shall not have occurred prior to the date of such exercise had he been Section 11(a)(ii) Event, the holder number of record one-hundredths of such Common Stock as of the date on a Preferred Share for which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.a Right would
Appears in 1 contract
Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the likeNUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and class kind of shares available under covered by each Right, and the Warrant number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) If the aggregate Company at any time after the date of this Agreement (A) declares a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivides the outstanding Preferred Shares, (C) combines the outstanding Preferred Shares into a smaller number of shares or (D) issues any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e), the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares as of capital stock issuable on such date, shall be proportionately adjusted so that the Holder holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books of the Company were open, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification, but in no event may the Warrant been exercised consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. If an event occurs that would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) will be in addition to, and will be made prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) Subject to Section 24, if any Person, alone or together with its Affiliates and Associates, becomes an Acquiring Person (a "Section 11(a)(ii) Event"), then promptly following that occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7(e), thereafter has a right to receive, upon exercise thereof at the then current Exercise Price in accordance with this Agreement, such number of Preferred Shares of the Company as equals the result obtained by (x) multiplying the then current Exercise Price by the number of one one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the event first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and had dividing that product by (y) 50% of the Holder continued Fair Market Value (as defined herein) of one one-thousandth of a Preferred Share (determined in accordance with Section 11(d)) on the date of the occurrence of that Section 11(a)(ii) Event (such number of shares being referred to hold such shares until after as the event requiring adjustment. The form "Adjustment Shares").
(iii) In lieu of this Warrant need not be changed because issuing any Preferred Shares in accordance with Section 11(a)(ii), the Company, acting by resolution of any adjustment in the Board of Directors, may, and if the number of Preferred Shares which are authorized by the Company's Second Amended and Restated Articles of Incorporation, as amended (or other instrument governing its corporate affairs), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board of Directors, shall: (A) determine the excess of (X) the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (Y) the Exercise Shares Price attributable to each Right (such excess being referred to as the "Spread") and (B) with respect to all or a portion of each Right (subject to Section 7(e)), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price, (1) cash, (2) a reduction in the Exercise Price, (3) Preferred Share Equivalents which the Board of Directors has deemed to have the same value as Preferred Shares, (4) debt securities of the Company, (5) other assets of the Company or (6) any combination of the foregoing which, when added to any Preferred Shares issued upon such exercise, has an aggregate value equal to Current Value, with such aggregate value determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors; but if the Company has not made adequate provision to deliver the value determined in accordance with clause (B) above within 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall deliver, upon surrender of a Right for exercise and without requiring payment of the Exercise Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board of Directors determines in good faith that it is likely that sufficient additional Preferred Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not to more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (that period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action must be taken pursuant to the first or second sentence of this WarrantSection 11(a)(iii), the Company (x) shall provide, subject to Section 7(e), that such action will apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares or to decide the appropriate form of distribution to be made pursuant to that first sentence and to determine the value thereof. On any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and another public announcement when the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of a Preferred Share will be the Fair Market Value (as determined pursuant to Section 11(d)) of a Preferred Share on the Section 11(a)(ii) Trigger Date and the value of any Preferred Share Equivalent will be considered to have the same value as a Preferred Share on that date.
(b) If at any time the Company fixes a record date for the issuance of rights, options or from time warrants to time the all holders of Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after that record date) to subscribe for or purchase Preferred Shares (or securities having the same or more favorable rights, privileges and preferences as the Preferred Shares ("Preferred Share Equivalents")) or securities convertible into Preferred Shares or Preferred Share Equivalents at a price per Preferred Share or per Preferred Share Equivalent (or having a conversion price per share, if a security convertible into Preferred Shares or Preferred Share Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d)) per Preferred Share on that record date, the Exercise Price to be in effect after that record date will be determined by multiplying the Exercise Price in effect immediately prior to that record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on that record date, plus the number of Preferred Shares which the aggregate offering price of the Company total number of Preferred Shares or Preferred Share Equivalents to be offered (and the aggregate initial conversion price of the convertible securities to be so offered) would purchase at that Fair Market Value and the denominator of which shall be the number of Preferred Shares outstanding on that record date, plus the number of additional Preferred Shares and Preferred Share Equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at to be so offered are initially convertible), but in no event will the time receivable consideration to be paid upon the exercise of this Warrant) shall have received a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. If the subscription price may be paid in a consideration part or become entitled all of which is in a form other than cash, the value of such consideration will be the Fair Market Value thereof determined in accordance with Section 11(d). Preferred Shares owned by or held for the account of the Company will not be considered outstanding for the purpose of any such computation. Those adjustments will be made successively whenever any such record date is fixed; and if any such rights or warrants are not so issued, the Exercise Price will be adjusted to receive, without payment therefor,be the Exercise Price that would then be in effect if the applicable record date had not been fixed.
(ic) Common Stock If the Company fixes a record date for the making of a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation) of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stockthan a regular periodic cash dividend), or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution assets (other than a dividend payable in Preferred Shares, but including any dividend payable in capital stock other than Preferred Shares) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after that record date will be determined by multiplying the Exercise Price in effect immediately prior to that record date by a fraction, the numerator of which will be the Fair Market Value (as determined pursuant to Section 11(d)) of one one-thousandth of a Preferred Share on that record date, less the Fair Market Value (as determined pursuant to Section 11(d)) of the portion of the cash, assets or evidences of indebtedness to be so distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a Preferred Share and the denominator of which will be the Fair Market Value (as determined pursuant to Section 11(d)) of one one- thousandth of a Preferred Share, but in no event will the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. Those adjustments will be made successively whenever any such record date is fixed, and if any such distribution covered is not so made, the Exercise Price will again be adjusted to be the Exercise Price that would be in section 5(a) above),effect if the applicable record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid Preferred Share, Common Share or payable otherwise than any other share or any Right or other security or any other property will be determined as a cash dividend, orprovided in this Section 11(d).
(iiii) Common Stock or additional In the case of a publicly-traded stock or other security, the Fair Market Value on any date will be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as defined herein) immediately prior to such date; however, if the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value will be properly adjusted to take into account ex-dividend trading. The closing price for each day will be the last sale price, upon regular way, or, if no such sale takes place on such day, the exercise average of this Warrantthe closing bid and asked prices, be entitled to receiveregular way, in addition either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date will be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors, and without payment but if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date will be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination will be described in a statement filed with the Rights Agent and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold will be binding on the date of such exercise had he been Rights Agent and the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.of
Appears in 1 contract
Samples: Shareholder Rights Agreement (Associated Estates Realty Corp)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
11.1.1 In the event the Company shall at any time after the date of this Agreement (a) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (b) subdivide the outstanding Preferred Stock, (c) combine the outstanding Preferred Stock into a smaller number of shares or (d) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11.1 and Section 7.5 hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11.1.1 and Section 11.1.2 hereof, the adjustment provided for in this Section 11.1.1 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11.1.2 hereof.
11.1.2 Subject to the provisions of Section 24 hereof, in the event any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person (a "Section 11.1.2 Event"), then promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7.5 hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company as shall equal the result obtained by (a) multiplying the then current Exercise Price by the then number of one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11.1.2 Event, whether or not such Right was then exercisable, and dividing that product by (b) 50% of the Fair Market Value per one one-thousandth of a share of the Preferred Stock (determined pursuant to Section 11.4) on the date of the occurrence of a Section 11.1.2 Event (such number of shares being referred to as the "Adjustment Shares").
11.1.3 In lieu of issuing any shares of Preferred Stock in accordance with Section 11.1.2 hereof, the Company, acting by or pursuant to resolution of the Board of Directors, may, and in the event that the number of shares of Preferred Stock which are authorized by the Company's Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing Section 11.1.2, the Company, acting by or pursuant to resolution of the Board of Directors, shall: (a) determine the excess of (i) the Fair Market Value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (ii) the Exercise Price attributable to each Right (such excess being referred to as the "Spread") and (b) with respect to all or a portion of each Right (subject to Section 7.5 hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price,
(1) cash, (2) a reduction in the Exercise Price, (3) Preferred Stock Equivalents which the Board of Directors has deemed to have the same value as shares of Common Stock of the Company, (4) debt securities of the Company, (5) other assets of the Company or (6) any combination of the foregoing which, when added to any shares of Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (b) above within thirty (30) days following the later of (x) the first occurrence of a Section 11.1.2 Event and (y) the date on which the Company's right of redemption pursuant to Section 23.1 expires (the later of (x) and (y) being referred to herein as the "Section 11.1.2 Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Exercise Price, shares of Preferred Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of Preferred Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11.1.2 Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, being referred to herein as the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11.1.2, the Company (1) shall provide, subject to Section 7.5 hereof, that such action shall apply uniformly to all outstanding Rights and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of changes any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11.1.3, the value of the Preferred Stock shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per share of the Preferred Stock on the Section 11.1.2 Trigger Date and the value of any Preferred Stock Equivalent shall be deemed to have the same value as the Preferred Stock on such date.
11.2 If the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11.4 hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding Common on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company by reason issuable upon exercise of stock dividends, split-ups, recapitalizations, reclassifications, combinations a Right. In case such subscription price may be paid in a consideration part or exchanges all of shares, separations, reorganizations, liquidations, or the likewhich shall be in a form other than cash, the number value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11.4 hereof. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and class of shares available under the Warrant in the aggregate and event that such rights or warrants are not so issued, the Exercise Price shall be correspondingly adjusted to give be the Holder Exercise Price which would then be in effect if such record date had not been fixed.
11.3 If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time earnings or from time to time the holders of Common Stock retained earnings of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receiveCompany), without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11.2, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per one one-thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11.4 hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per one one-thousandth of a share of Preferred Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(ii) 11.4 For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11.4.
11.4.1 In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (a) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashb) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last sale price as reported by Nasdaq for securities listed on the Nasdaq National Market or, in case no such sale takes place on such day, the average of the closing bid and asked prices as reported by Nasdaq; or, if not listed or admitted to trading on a national securities exchange or the Nasdaq National Market, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by Nasdaq or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date shall be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors of the Company, and without payment provided, however, that if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and other shall be binding on the Rights Agent and the holders of the Rights. The term "Trading Day" shall mean a day on which the principal national securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) exchange on which such Holder would hold security is listed or admitted to trading is open for the transaction of business or, if such security is not listed or admitted to trading on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other any national securities and propertyexchange, a Business Day.
Appears in 1 contract
Samples: Shareholders' Rights Agreement (Tweeter Home Entertainment Group Inc)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11 (a) and Section 7 (e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; PROVIDED, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11 (a) (i) and Section 11 (a) (ii) hereof, the adjustment provided for in this Section 11 (a) (i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11 (a) (ii) hereof.
(ii) Subject to the provisions of Sections 23 and 24 hereof, in the outstanding Common event that:
(A) any Person (other than an Exempt Person) alone or together with its Affiliates and Associates, shall become an Acquiring Person; or
(B) the Board of Directors of the Company, by majority vote, shall declare any Person to be an Adverse Person; then, in each such case, promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7 (e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company by reason of stock dividends(or, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and discretion of the Board of Directors, Common Stock) as shall equal the result obtained by (x) multiplying the then current Exercise Price shall be correspondingly adjusted to give by the Holder then number of the Warrant, on exercise one one-thousandth of a share of Preferred Stock for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) 50% of the Fair Market Value per one one-thousandth of a share of the Preferred Stock (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient authorized but unissued shares of Preferred Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(a)(ii), the Company shall take all action as may be necessary to authorize and had reserve for issuance such number of additional shares of Preferred Stock as may from time to time be required to be issued upon the Holder continued exercise in full of all Rights outstanding and, if necessary, shall use its best efforts to hold obtain shareholder approval thereof. Notwithstanding the foregoing provisions of this Section 11(a)(iii), in lieu of issuing shares of Preferred Stock in accordance with Section 11(a)(ii) hereof, if a majority of the Directors then in office determines that such action is necessary or appropriate and is not contrary to the interests of the holders of the Rights, they may elect to cause the Company to pay, and if sufficient shares until of Preferred Stock cannot be issued for such purpose in accordance with the provisions hereof, the Company shall issue or pay upon the exercise of the Rights, cash, property, debt securities, shares of preferred stock or common stock, or any combination thereof, having an aggregate Fair Market Value equal to the Fair Market Value of the shares of Preferred Stock which otherwise would have been issuable pursuant to Section 11(a)(ii). Any such election by a majority of the Directors of the Company must be made and publicly announced within 30 days after the event requiring adjustment. The form of this Warrant need not be changed because of date on which any adjustment in Section 11(a)(ii) Event first occurs following the number of Exercise Shares subject to this WarrantStock Acquisition Date.
(b) If at any time the Company shall fix a record date for the issuance of rights, options or from time warrants to time the all holders of Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the Fair Market Value (as determined pursuant to Section 11 (d) hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the Company total number of shares of Preferred Stock to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at so to be offered are initially convertible); PROVIDED, however, that in no such event shall the time receivable consideration to be paid upon the exercise of this Warranta Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Preferred Stock owned by or held for the account of the Company shall have received not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights or become entitled warrants are not so issued, the Exercise Price shall be adjusted to receive, without payment therefor,be the Exercise Price which would then be in effect if such record date had not been fixed.
(ic) Common If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation) of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) ), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11 (d) hereof) per one one-thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one one-thousandth of a share of Preferred Stock; PROVIDED, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the American Stock Exchange or, if the securities are not listed or admitted to trading on the American Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date shall be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors of the Company: PROVIDED, and without payment however, that if at the time of any additional consideration thereforsuch determination there is an Acquiring Person or an Adverse Person, the amount Fair Market Value of stock such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and other securities shall be binding on the Rights Agent and property (including cash in the cases referred to in clauses holders of the Rights.
(ii) If the Preferred Stock is not publicly held or not so listed or traded in the manner described in clause (i) but the Common Stock is so listed or traded, then the "Fair Market Value" of a share of the Preferred Stock shall be conclusively deemed to be an amount equal to 1,000 (as such number may be appropriately adjusted for events such as stock splits, stock dividends and recapitalizations with respect to the Common Stock after the date of this Agreement) multiplied by the Fair Market Value of a share of the Common Stock.
(iii) above) If neither the Preferred Stock or Common Stock is publicly held or not so listed or traded, "Fair Market Value" shall mean the fair value per share of stock or per other unit of such security, determined reasonably and with utmost good faith to the holders of the Rights by the Board of Directors of the Company; PROVIDED, however, that if at the time of such determination there is an Acquiring Person or an Adverse Person, the Fair Market Value of such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which such Holder would hold determination shall be described in a statement filed with the Rights Agent and shall be binding on the date of such exercise had he been Rights Agent and the holder of record of such Common Stock as holders of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and propertyRights.
Appears in 1 contract
Samples: Shareholder Rights Agreement (American Science & Engineering Inc)
Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate AND NUMBER OF SHARES PURCHASABLE OR NUMBER OF WARRANTS. The Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereuponpurchasable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 3.1.
(a) If the Company shall (i) pay a dividend on or make a distribution of shares of its capital stock, and without payment whether shares of Common Stock or shares of its capital stock of any additional consideration thereforother class, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and subdivide its outstanding shares of Common Stock, (iii) abovecombine its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), then the number of shares of Common Stock purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the holder of each Warrant shall be entitled to receive the kind and number of shares of Common Stock or other securities of the Company which such Holder holder would hold have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (a) shall become effective immediately after the effective date of such event, retroactive to immediately after the record date, if any, for such event.
(b) If the Company shall issue rights, options or warrants to all holders of its outstanding Common Stock, without any charge to such holders, entitling them to subscribe for or purchase shares of Common Stock at a price per share that is lower than the market price per share of Common Stock (as defined in paragraph (e) below) at the record date mentioned below, the number of shares of Common Stock thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator shall be (i) the number of shares of Common Stock outstanding on the date of such exercise had he been the holder of record issuance of such Common Stock as rights, options or warrants plus the number of the date on which holders additional shares of Common Stock received offered for subscription or became purchase, and of which the denominator shall be (ii) the number of shares of Common Stock outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered would purchase at the market price per share of Common Stock at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective retroactive to immediately after the record date for the determination of stockholders entitled to receive such rights, options or warrants.
(c) If the Company shall distribute to all holders of its shares of Common Stock evidences of its indebtedness or all other additional stock and other securities and property.assets (excluding cash dividends or
Appears in 1 contract
Adjustment of Exercise Price. 5.1 Stock Dividends, Split-ups, Recapitalizations, Etc.
(a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizationscombinations, reclassificationsdistributions in shares of Common Stock, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment; provided, however, that such adjustment shall not be made with respect to any Cash Transaction (as defined in Section 7 below). The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at Notwithstanding the foregoing, if any time reorganization, reclassification of the capital stock of the Company, consolidation or from time to time the holders of Common Stock merger of the Company (with another corporation in which the Company is not the survivor, or any shares of stock sale, transfer or other securities at the time receivable upon the exercise disposition of this Warrant) shall have received all or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any substantially all of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than Company’s assets to another corporation shall be effected, then, as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way condition of spinoff, split-upsuch reorganization, reclassification, combination consolidation, merger, sale, transfer or other disposition, lawful and adequate provision shall be made whereby each Holder shall thereafter have the right to purchase and receive upon the basis and upon the terms and
6. conditions herein specified and in lieu of shares or similar corporate rearrangement (other than the Exercise Shares immediately theretofore issuable upon exercise of the Warrant, such shares of Common Stock pursuant stock, securities or assets as would have been issuable or payable with respect to Section 5(a) above), then and or in each such case, the Holder hereof will, upon the exercise exchange for a number of this Warrant, be entitled to receive, in addition Exercise Shares equal to the number of Exercise Shares immediately theretofore issuable upon exercise of the Warrant, had such reorganization, reclassification, consolidation, merger, sale, transfer or other disposition not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Holder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares of Common Stock receivable thereuponstock, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such consolidation, merger, sale, transfer or other disposition unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the obligation to deliver to the Holder, at the last address of the Holder appearing on the books of the Company, such shares of stock, securities or assets as, in accordance with the foregoing provisions, the Holder may be entitled to purchase, and without payment the other obligations under this Warrant. The provisions of any additional consideration thereforthis paragraph (b) shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales, transfers or other dispositions. Notwithstanding the foregoing, the amount terms of stock and other securities and property (including cash in this Section 5.1(b) shall not apply to any Cash Transaction, which shall be governed by the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date provisions of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and propertySection 7.
Appears in 1 contract
Samples: Warrant Agreement (Idm Pharma, Inc.)
Adjustment of Exercise Price. Number of Shares Issuable Upon Exercise of Rights or Number of Rights. The Exercise Price, the number and kind of securities that may be purchased upon exercise of a Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event that the Company shall at any time after the Close of changes Business on the Record Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date (A) declare or pay any dividend on the Preferred Shares payable in Preferred Shares or Voting Shares, (B) subdivide the outstanding Common Stock Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of Preferred Shares or (D) issue Preferred Shares or Voting Shares in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving corporation), split-upsthen, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the likeand upon each such event, the number and class kind of Preferred Shares or other securities issuable upon the exercise of a Right on the date of such event shall be proportionately adjusted so that the holder of any Right exercised on or after such date shall be entitled to receive, upon the exercise thereof and payment of the Exercise Price, the aggregate number and kind of Preferred Shares or other securities or other property, as the case may be, that, if such Right had been exercised immediately prior to such date and at a time when such Right was exercisable and the transfer books of the Company were open, such holder would have owned upon such exercise and would have been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) In the event (a "Section 11(a)(ii) Event") that a 15% Ownership Date shall have occurred and neither the Redemption Date nor the Expiration Date shall have occurred prior to the tenth Business Day following such 15% Ownership Date, then, and upon each such event, proper provision shall be made so that except as provided in Section 7(d) hereof, each holder of a Right shall thereafter have the right to receive, upon the exercise thereof in accordance with the terms of this Agreement and payment of the then current Exercise Price, in lieu of the securities or other property otherwise purchasable upon such exercise, such number of Common Shares of the Company as shall equal the result obtained by multiplying the then current Exercise Price by the then number of one-hundredths of a Preferred Share for which a Right was exercisable (or, if the Distribution Date shall not have occurred prior to the date of such Section 11(a)(ii) Event, the number of one-hundredths of a Preferred Share for which a Right would have been exercisable if the Distribution Date had occurred on the Business Day immediately preceding the date of such Section 11(a)(ii) Event) immediately prior to such Section 11(a)(ii) Event, and dividing that product by 50% of the Current Market Price (determined pursuant to Section 11(d) hereof) of a Common Share on the date of occurrence of the relevant Section 11(a)(ii) Event (such number of shares available under being hereinafter referred to as the Warrant "Adjustment Shares "). Successive adjustments shall be made pursuant to this paragraph each time a Section 11(a)(ii) Event occurs.
(iii) In the event that on the date of a Section 11(a)(ii) Event the aggregate number of Common Shares that are authorized by the Company's Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is less than the aggregate number of Adjustment Shares thereafter issuable upon the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof (the excess of such number of Adjustment Shares over and above such number of Common Shares being hereinafter referred to as the "Unavailable Adjustment Shares "), then, and upon each such event, the Company shall substitute for the pro rata portion of the Unavailable Adjustment Shares that would otherwise be issuable thereafter upon the exercise of each Right and payment of the Exercise Price, (A) cash, (B) other equity securities of the Company (including, without limitation, shares of preferred stock of the Company or units of such shares having the same Current Market Price as one Common Share (a "Common Share Equivalent ")), (C) debt securities of the Company, (D) other property or (E) any combination of the foregoing, in each case having an aggregate Current Market Price equal to the aggregate Current Market Price of the Unavailable Adjustment Shares for which substitution is made. Subject to Section 7(d) hereof, in the event that the Company takes any action pursuant to this Section 11(a)(iii), such action shall apply uniformly to all outstanding Rights.
(b) In the event that the Company shall, at any time after the Close of Business on the Record Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date, fix a record date prior to the earlier of the Redemption Date or the Expiration Date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them initially to subscribe for or purchase Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares ("Preferred Share Equivalents ")) or securities convertible into Preferred Shares or Preferred Share Equivalents, at a price per Preferred Share or Preferred Share Equivalent (or having a conversion price per share, if a security convertible into Preferred Shares or Preferred Share Equivalents) less than the Current Market Price per Preferred Share on such record date, then, and upon each such event, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be equal to the sum of the number of Preferred Shares outstanding on such record date plus the number of Preferred Shares that the aggregate offering price of the total number of Preferred Shares and/or Preferred Share Equivalents to be so offered (and/or the aggregate initial conversion price of the convertible securities to be so offered) would purchase at such Current Market Price, and the denominator of which shall be equal to the number of Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or Preferred Share Equivalents to be offered for subscription or purchase (or into which the convertible securities to be so offered are initially convertible); provided, however, that if such rights, options or warrants are not exercisable immediately upon issuance but become exercisable only upon the occurrence of a specified event or the passage of a specified period of time, then the adjustment to the Exercise Price shall be correspondingly made and become effective only upon the occurrence of such event or such passage of time, and such adjustment shall be made as if the record date for the issuance of such rights, options or warrants had been the business day immediately preceding the date upon which such rights, options or warrants became exercisable. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment to the Exercise Price shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to give be the Holder Exercise Price that would then be in effect if such record date had not been fixed.
(c) In the event that the Company shall, at any time after the Close of Business on the Record Date and prior to the Close of Business on the earlier of the WarrantRedemption Date or the Expiration Date, on exercise fix a record date for the same aggregate making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the surviving corporation) of securities or assets (other than a distribution of securities for which an adjustment is required under Section 11(a)(i) or (b) hereof or a regular quarterly cash dividend), then the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be equal to the excess of the Current Market Price per Preferred Share on such record date over and above the fair market value of the portion of the securities or assets to be so distributed with respect to one Preferred Share, and the denominator of which shall be equal to such Current Market Price per Preferred Share. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price that would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under this Section 11, if the Preferred Shares are not publicly held or traded, the "Current Market Price" per Preferred Share shall be conclusively deemed to be the Current Market Price per Common Share multiplied by 100.
(e) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments that by reason of this Section 11(e) are not required to be made shall be cumulated and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest one-thousandth of a Common Share or other share or one-millionth of a Preferred Share, as the case may be.
(f) If, as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any Right thereafter exercised shall become entitled to receive any securities of the Company other than Preferred Shares, the number of such other securities so receivable upon exercise of any Right shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Preferred Shares contained in this Section 11, and the other provisions of this Agreement with respect to Preferred Shares shall apply on like terms to any such other securities.
(g) All Rights originally issued by the Company subsequent to any adjustment made to the Exercise Price hereunder shall represent the right to purchase, at the adjusted Exercise Price, the total numbernumber of one-hundredths of a Preferred Share purchasable from time to time hereunder upon exercise of the Rights, classall subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in Section 11(i) below, upon each adjustment of the Exercise Price as a result of the calculations made in Sections 11(b) and kind of shares as the Holder would have owned had the Warrant been exercised (c) hereof, each Right outstanding immediately prior to the event making of such adjustment shall thereafter represent the right to purchase, at the adjusted Exercise Price, that number of one- hundredths of a Preferred Share (calculated to the nearest one-millionth of a Preferred Share) obtained by multiplying (i) the number of one-hundredths of a Preferred Share purchasable upon the exercise of one Right immediately prior to such adjustment of the Exercise Price by (ii) the Exercise Price in effect immediately prior to such adjustment, and had dividing the Holder continued to hold product so obtained by the Exercise Price in effect immediately after such shares until adjustment.
(i) The Company may elect, on or after the event requiring adjustment. The form date of this Warrant need not be changed because any adjustment of the Exercise Price, to adjust the number of Rights instead of making any adjustment in the number of Exercise Preferred Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be exercisable for the number of one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one one-thousandth of a Right) obtained by dividing the Exercise Price in effect immediately prior to the adjustment of the Exercise Price by the Exercise Price in effect immediately after such adjustment of the Exercise Price. The Company shall promptly notify the Rights Agent in writing of such election and shall make a public announcement of its election to adjust the number of Rights pursuant to this WarrantSection 11(i), indicating the record date for the adjustment and, if known at the time, the amount of the adjustment to be made. Such record date may be the date on which the Exercise Price is adjusted or any day thereafter, but, if separate Right Certificates have been issued, it shall be at least 10 days after the date of such public announcement. If separate Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of record of Right Certificates on such record date Right Certificates representing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment or, at the option of the Company, cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of such adjustment, and upon surrender thereof if required by the Company, new Right Certificates representing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Exercise Price) and shall have received or become entitled to receive, without payment therefor,be registered in the names of the holders of record of Right Certificates on the record date specified in the public announcement.
(ij) Common Stock Irrespective of any adjustment or any shares change in the Exercise Price or the number of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any one-hundredths of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, Preferred Share issuable upon the exercise of this Warrantone Right, be entitled the Right Certificates theretofore and thereafter issued may continue to receive, in addition to express the Exercise Price per one one-hundredth of a Preferred Share and the number of shares Preferred Shares issuable upon the exercise of Common Stock receivable thereuponone Right that were expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the Exercise Price below one one-hundredth of the then par value, if any, of the Preferred Shares issuable upon exercise of the Rights, the Company shall take any corporate action that may, in the advice or opinion of its counsel, be necessary in order that the Company may validly and without payment legally issue fully paid and nonassessable one one-hundredths of a Preferred Share at such adjusted Exercise Price.
(1) In any case in which this Section 11 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer (and shall promptly notify the Rights Agent of any additional consideration thereforsuch election), until the occurrence of such event, the amount of stock and other securities and property (including cash in the cases referred issuance to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of any Right exercised after such record of such Common Stock as date of the date number of one- hundredths of a Preferred Share and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of one- hundredths of a Preferred Share and other capital stock or securities of the Company, if any, issuable upon such exercise on which holders the basis of Common Stock received the Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due xxxx or became entitled other appropriate instrument representing such holder's right to receive such additional shares or all other additional stock and other securities and propertyupon the occurrence of the event requiring such adjustment.
Appears in 1 contract
Samples: Rights Agreement (Jacobs Engineering Group Inc /De/)
Adjustment of Exercise Price. Number and Kind of Shares or Number of Rights. The Exercise Price, the number and kind of securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company at any time after the date hereof (A) declares a dividend on the Preferred Stock payable in shares of changes Preferred Stock; (B) subdivides the outstanding Preferred Stock; (C) combines the outstanding Preferred Stock into a smaller number of shares; or (D) issues any shares of its capital stock in a reclassification of Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving entity), except as otherwise provided in this Section 11(a), then the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the case may be, issuable on such date upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time becomes entitled to receive, upon payment of the Exercise Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event may the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares (or fractions thereof) of capital stock of the Company issuable upon exercise of one Right. If an event occurs that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 23 and Section 24 hereof, in the event that any Person, alone or together with its Related Persons, becomes an Acquiring Person (the first occurrence of such event, the “Flip-In Event”), unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then proper provision shall be made so that promptly following the Redemption Period, each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the then current Exercise Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, a number of shares of Common Stock of the Company equal to the result obtained by (A) multiplying the then current Exercise Price by the number of one one-thousandths of a share of Preferred Stock for which a Right was or would have been exercisable immediately prior to the Flip-In Event, whether or not such Right was then exercisable (and, following such Flip-In Event, references to the “Exercise Price” shall thereafter mean such product for each Right and for all purposes of this Agreement except to the extent set forth in Section 13 hereof); and (B) dividing that product by fifty percent (50%) of the Current Market Price of Common Stock on the date of such Flip-In Event (such number of shares, the “Adjustment Shares”); provided, however, that in connection with any exercise effected pursuant to this Section 11(a)(ii), no holder of Rights shall be entitled to receive Common Stock (or other shares of capital stock of the Company) that would result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of more than 15% of the then-outstanding Common Stock of the Company by reason of stock dividendson a fully diluted basis (or, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and case of a Grandfathered Person, becoming the Exercise Price shall be correspondingly adjusted to give the Holder Beneficial Owner of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders an additional share of Common Stock (or other shares of capital stock of the Company (or any shares of stock or other securities at Company)). If a holder would, but for the time receivable upon proviso in the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrantimmediately preceding sentence, be entitled to receivereceive upon exercise of a Right a number of shares that would otherwise result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of in excess of 15% of the then-outstanding Common Stock on a fully diluted basis (or, in addition the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Stock (or other shares of capital stock of the Company)) (such shares, the “Excess Shares”), then in lieu of receiving such Excess Shares and to the extent permitted by law or orders applicable to the Company, such holder shall only be entitled to receive an amount in cash or, at the election of the Company, a note or other evidence of indebtedness maturing within nine (9) months with a principal amount, equal to the Current Market Price of a share of Common Stock at the Close of Business on the Trading Day following the date of exercise multiplied by the number of shares Excess Shares that would otherwise have been issuable to such holder. The Company shall provide the Rights Agent with written notice of Common Stock receivable thereuponthe identity of any such Acquiring Person, Related Person or the nominee or transferee of any of the foregoing, and without payment the Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any additional consideration thereforsuch Acquiring Person, Related Person or the amount nominee or transferee of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as any of the date on which holders of Common Stock foregoing, unless and until it has received or became entitled to receive such shares or all other additional stock and other securities and propertynotice.
Appears in 1 contract
Samples: Rights Agreement (theMaven, Inc.)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to the provisions of Section 24 hereof, in the event
(A) any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, or
(B) the Board of Directors of the Company, by majority vote, shall declare any Person to be an Adverse Person, after (x) a determination that such Person, alone or together with its Affiliates and Associates, has become the Beneficial Owner of 10% or more of the outstanding shares of Common Stock of the Company and (y) a determination by reason the Board of stock dividendsDirectors, splitafter reasonable inquiry and investigation, including such consultation, if any, with such persons as such directors shall deem appropriate, that (a) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or will cause the Company to repurchase the Common Stock of the Company beneficially owned by such Person or to cause pressure on the Company to take action or enter into a transaction or series of transactions which would provide such Person with short-upsterm financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company and its shareholders, recapitalizationsbut for the actions and possible actions of such Person, reclassificationswould not be served by taking such action or entering into such transactions or series of transactions at that time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, combinations but not limited to, impairment of relationships with customers or exchanges impairment of sharesthe Company's ability to maintain its competitive position) on the business or prospects of the Company. No delay or failure by the Board of Directors to declare a Person to be an Adverse Person shall in any way waive or otherwise affect the power of the Board of Directors subsequently to declare a Person to be an Adverse Person. In the event that the Board of Directors should at any time determine, separationsupon reasonable inquiry and investigation, reorganizationsincluding consultation with such Persons as the Board of Directors shall deem appropriate, liquidations, that such Person has not met or complied with any condition specified by the likeBoard of Directors, the Board of Directors may at any time thereafter declare such Person to be an Adverse Person pursuant to the provisions of this Section 11(a)(ii)(B), then, and in each such case, promptly following any such occurrence (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number and class of shares available under of Preferred Stock of the Warrant Company as shall equal the result obtained by (x) multiplying the then current Exercise Price by the then number of one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and dividing that product by (y) 50% of the Fair Market Value per one one-thousandth of a share of the Preferred Stock (determined pursuant to Section 11(d)) on the date of the occurrence of a Section 11(a)(ii) Event (such number of shares being referred to as the "Adjustment Shares").
(iii) In lieu of issuing any shares of Preferred Stock in accordance with Section 11(a)(ii) hereof, the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, may, and in the aggregate and event that the number of shares of Preferred Stock which are authorized by the Company's Articles of Organization but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, shall (A) determine the excess of (X) the Fair Market Value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (Y) the Exercise Price shall be correspondingly adjusted attributable to give each Right (such excess being referred to as the Holder "Spread") and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the Warrant, on exercise for the same aggregate applicable Exercise Price, (1) Common Stock of the total numberCompany, class(2) cash, (3) a reduction in the Exercise Price, (4) Preferred Stock Equivalents which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock of the Company, (5) debt securities of the Company, (6) other assets or securities of the Company or (7) any combination of the foregoing which, when added to any shares of Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; PROVIDED, HOWEVER, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and kind (y) the date on which the Company's right of shares redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the Holder would have owned had "Section 11(a)(ii) Trigger Date"), then the Warrant been exercised prior Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Exercise Price, shares of Preferred Stock (to the event extent available) and had then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Holder continued Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Preferred Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to hold such shares until the extent necessary, but not more than ninety (90) days after the event requiring adjustmentSection 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, being referred to herein as the "Substitution Period"). The To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of this Warrant need not distribution to be changed because made pursuant to such first sentence and to determine the value thereof. In the event of any adjustment such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the number value of Exercise Shares subject the Preferred Stock shall be the Fair Market Value (as determined pursuant to this WarrantSection 11(d) hereof) per share of the Preferred Stock on the Section 11(a)(ii) Trigger Date and the value of any Preferred Stock Equivalent shall be deemed to have the same value as the Preferred Stock on such date.
(b) If at any time the Company shall fix a record date for the issuance of rights, options or from time warrants to time the all holders of Common Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the Company total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at so to be offered are initially convertible); PROVIDED, HOWEVER, that in no event shall the time receivable consideration to be paid upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any a Right be less than the aggregate par value of the shares of stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other securities which are at than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any time directly or indirectly convertible into or exchangeable for Common Stock, or any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such rights or options warrants are not so issued, the Exercise Price shall be adjusted to subscribe forbe the Exercise Price which would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), purchase or otherwise acquire any of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one one-thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one one-thousandth of a share of Preferred Stock; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, split-upand prior to the expiration of the 30 Trading Day period after the ex- dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration thereforcase no such sale takes place on such day, the amount average of stock the closing bid and other securities and property (including cash asked prices, regular way, in either case as reported in the cases referred principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in clauses (ii) and (iii) above) the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received security is listed or became entitled admitted to receive such shares trading; or, if not listed or all other additional stock and other securities and property.admitted to trading on
Appears in 1 contract
Adjustment of Exercise Price. Number and Kind of Shares or Number of Rights. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue, change or alter any shares of its capital stock in a reclassification or recapitalization of the Preferred Stock (including any such reclassification or recapitalization in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving Person), split-upsexcept as otherwise provided in this Section 11(a) and Section 7(e) hereof, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or the effective time of such subdivision, on exercise for combination, reclassification or recapitalization, and the same aggregate Exercise Price, the total number, class, number and kind of shares as of capital stock issuable on such date or at such time, shall be proportionately adjusted so that the Holder holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination, reclassification or recapitalization; provided, however, that in no event shall the Warrant been exercised prior consideration to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this WarrantSection 11(a)(i) shall have received or become entitled to receivebe in addition to, without payment therefor,
(i) Common Stock or and shall be made prior to, any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock adjustment required pursuant to Section 5(a11(a)(ii) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and propertyhereof.
Appears in 1 contract
Adjustment of Exercise Price. Number and Kind of Shares or Number of Rights. The Exercise Price, the number and kind of securities covered by each Right
(ai) In the event the Company at any time after the date hereof (A) declares a dividend on the Preferred Stock payable in shares of changes in Preferred Stock; (B) subdivides the outstanding Common Preferred Stock; (C) combines the outstanding Preferred Stock into a smaller number of shares; or (D) issues any shares of its capital stock in a reclassification of Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving entity), split-upsexcept as otherwise provided in this Section 11(a), recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and then the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the Holder case may be, issuable on such date upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time becomes entitled to receive, upon payment of the Exercise Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event may the Warrant been exercised consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares (or fractions thereof) of capital stock of the Company issuable upon exercise of one Right. If an event occurs that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of to, any adjustment in the number of Exercise Shares subject required pursuant to this WarrantSection 11(a)(ii) hereof.
(bi) If at Subject to Section 23 and Section 24 hereof, in the event that any time Person, alone or from time together with its Related Persons, becomes an Acquiring Person (the first occurrence of such event, the “Flip-In Event”), unless the event causing such Person to time become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then proper provision shall be made so that promptly following the holders Redemption Period, each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the then current Exercise Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, a number of shares of Common Stock of the Company equal to the result obtained by (A) multiplying the then current Exercise Price by the number of one one-thousandths of a share of Preferred Stock for which a Right was or would have been exercisable immediately prior to the Flip-In Event, whether or not such Right was then exercisable; and (B) dividing that product (which, following such Flip- In Event, shall be referred to as the “Exercise Price” for each Right and for all purposes of this Agreement except to the extent set forth in Section 13 hereof) by 50% of the Current Market Price of Common Stock on the date of such Flip-In Event (such number of shares, the “Adjustment Shares”); provided, however, that in connection with any exercise effected pursuant to this Section 11(a) (ii), no holder of Rights shall be entitled to receive Common Stock (or any other shares of capital stock of the Company) that would result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of more than 15% of the then- outstanding Common Stock (or, in the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Stock (or other securities shares of capital stock of the Company)). If a holder would, but for the proviso in the immediately preceding sentence, be entitled to receive upon exercise of a Right a number of shares that would otherwise result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of in excess of 15% of the then-outstanding Common Stock (or, in the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Stock (or other shares of capital stock of the Company)) (such shares, the “Excess Shares”), then in lieu of receiving such Excess Shares and to the extent permitted by law or orders applicable to the Company, such holder will only be entitled to receive an amount in cash or, at the time receivable upon election of the exercise Company, a note or other evidence of this Warrant) shall have received or become entitled indebtedness maturing within nine months with a principal amount, equal to receive, without payment therefor,
(i) the Current Market Price of a share of Common Stock at the Close of Business on the Trading Day following the date of exercise multiplied by the number of Excess Shares that would otherwise have been issuable to such holder. The Company shall provide the Rights Agent with written notice of the identity of any such Acquiring Person, Related Person or any shares the nominee or transferee of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of dividend the identity of any such Acquiring Person, Related Person or other distribution (other than a dividend the nominee or distribution covered in section 5(a) above),transferee of any of the foregoing, unless and until it has received such notice.
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, In the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to event that the number of shares of Common Stock receivable thereuponauthorized by the Articles of Incorporation, but not outstanding, or reserved for issuance for purposes other than upon exercise of the Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing clause (ii), the Board shall, to the extent permitted by applicable law and by any agreements or instruments then in effect to which the Company is a party, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Exercise Price (such excess being the “Spread”), and without (B) with respect to each Right (subject to Section 7(e) hereof), make adequate provision to substitute for some or all of the Adjustment Shares, upon exercise of a Right and payment of any additional consideration thereforthe applicable Exercise Price, the amount of stock and other securities and property (including cash 1) cash; (2) a reduction in the cases referred Exercise Price; (3) shares or fractions of a share of Preferred Stock or other equity securities of the Company (including, without limitation, shares, or units of shares, of Preferred Stock which the Board has determined to in clauses have the same value as shares of Common Stock) (ii) and (iii) above) which such Holder would hold on the date shares of such exercise had he been the holder of record of such equity securities being herein called “Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.Equivalents”);
Appears in 1 contract
Samples: Rights Agreement
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR ---------------------------------------------------------------------- NUMBER OF RIGHTS. ---------------- The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Common Stock payable in shares of Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11 (a) and Section 7 (e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11 (a) (i) and Section 11 (a) (ii) hereof, the adjustment provided for in this Section 11 (a) (i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11 (a) (ii) hereof.
(ii) Subject to the provisions of Sections 23 and 24 hereof, in the outstanding event that any Person (other than an Exempt Person), alone or together with its Affiliates and Associates, shall become an Acquiring Person then, in such case, promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7 (e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or (x) multiplying the like, then current Exercise Price by the then number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise Common Stock for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) 50% of the Fair Market Value per share of the Common Stock (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(a)(ii), the Company shall take all action as may be necessary to authorize and had reserve for issuance such number of additional shares of Common Stock as may from time to time be required to be issued upon the Holder continued exercise in full of all Rights outstanding and, if necessary, shall use its best efforts to hold obtain shareholder approval thereof. Notwithstanding the foregoing provisions of this Section 11(a)(iii), in lieu of issuing shares of Common Stock in accordance with Section 11(a)(ii) hereof, (A) if a majority of the Directors then in office determines that such action is necessary or appropriate and is not contrary to the interests of the holders of the Rights, they may elect to cause the Company to pay, /or (B) if sufficient shares until of Common Stock cannot be issued for such purpose in accordance with the provisions hereof, then the Company shall issue or pay, upon the exercise of the Rights, cash, property, debt securities, shares of Common stock or other capital stock, or any combination thereof, having an aggregate Fair Market Value equal to the Fair Market Value of the shares of Common Stock which otherwise would have been issuable pursuant to Section 11(a)(ii). Any such election by a majority of the Directors of the Company must be made and publicly announced within 30 days after the event requiring adjustment. The form of this Warrant need not be changed because of date on which any adjustment in Section 11(a)(ii) Event first occurs following the number of Exercise Shares subject to this WarrantStock Acquisition Date.
(b) If at any time the Company shall fix a record date for the issuance of rights, options or from time warrants to time the all holders of Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Common Stock ("Common stock equivalents")) or securities convertible into Common Stock or Common stock equivalents at a price per share of Common Stock or per share of Common stock equivalents (or having a conversion price per share, if a security convertible into Common Stock or Common stock equivalents) less than the Fair Market Value (as determined pursuant to Section 11 (d) hereof) per share of Common Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the Company total number of shares of Common Stock to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of additional shares of Common Stock and Common stock equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at so to be offered are initially convertible); PROVIDED, however, that in no event shall the time receivable consideration to be paid upon the exercise of this Warranta Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Common Stock owned by or held for the account of the Company shall have received not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights or become entitled warrants are not so issued, the Exercise Price shall be adjusted to receive, without payment therefor,be the Exercise Price which would then be in effect if such record date had not been fixed.
(ic) If the Company shall fix a record date for the making of a distribution to all holders of Common Stock (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation) of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend payable in Common Stock, but including any dividend payable in stock other than Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11 (d) hereof) per share of Common Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to each share of Common Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per share of Common Stock; PROVIDED, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Common Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the American Stock Exchange or, if the securities are not listed or admitted to trading on the American Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date shall be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors of the Company; PROVIDED, and without payment however, that if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and other securities shall be binding on the Rights Agent and property (including cash in the cases referred to in clauses holders of the Rights.
(ii) If the Common Stock is not publicly held or not so listed or traded, "Fair Market Value" shall mean the fair value per share of stock or per other unit of such security, determined reasonably and (iii) above) with utmost good faith to the holders of the Rights by the Board of Directors of the Company; PROVIDED, however, that if at the time of such determination there is an Acquiring Person, the Fair Market Value of such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which such Holder would hold determination shall be described in a statement filed with the Rights Agent and shall be binding on the date of such exercise had he been Rights Agent and the holder of record of such Common Stock as holders of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and propertyRights.
Appears in 1 contract
Samples: Shareholder Rights Agreement (Alpha Industries Inc)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR ------------ --------------------------------------------------------------- NUMBER OF RIGHTS. ------------------- The Exercise Price, the number and kind of shares of stock covered by each Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In If the event Company at any time after the date of changes this Agreement (A) declares a dividend on the Preferred Stock payable in Preferred Stock, (B) subdivides the outstanding Preferred Stock, (C) combines the outstanding Preferred Stock into a smaller number of shares of stock, or (D) issues any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e), the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock (including Preferred Stock) issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock (including Preferred Stock), which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification, but in no event may the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. If an event occurs that would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) will be in addition to, and will be made prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) Subject to Section 24, if any Person, alone or together with its Affiliates and Associates, becomes an Acquiring Person (a "Section 11(a)(ii) Event"), then promptly following that occurrence, provision shall be made so that each holder of a Right, except as provided in Section 7(e), thereafter has a right to receive, upon exercise thereof at the then current Exercise Price multiplied by the then number of one one-thousandths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as equals the result obtained by reason (x) multiplying the then current Exercise Price by the number of one one-thousandths of a share of Preferred Stock for which a Right is then exercisable, and dividing that product by (y) 50% of the Fair Market Value (as defined herein) of one share of Common Stock (determined in accordance with Section 11(d)) on the date of the occurrence of that Section 11(a)(ii) Event (such number of shares of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges being referred to as the "Adjustment Shares").
(iii) In lieu of shares, separations, reorganizations, liquidations, or the likeissuing any Common Stock in accordance with Section 11(a)(ii), the Company, acting by resolution of the Board of Directors may, and if the number of authorized but unissued shares of Common Stock is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), and class the Rights become so exercisable, the Company, acting by resolution of shares available under the Warrant in Board of Directors, shall: (A) determine the aggregate and excess of the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (Y) the Exercise Price shall be correspondingly adjusted attributable to give each Right (such excess being referred to as the Holder "Spread"), and (B) with respect to all or a portion of each Right (subject to Section 7(e)), make adequate provision to substitute for the Adjustment Shares, upon payment of the Warrant, on exercise for the same aggregate applicable Exercise Price, (1) cash, (2) preferred stock, including but not limited to Preferred Stock, (3) other equity securities of the total numberCompany, class(4) debt securities of the Company, (5) other assets of the Company, or (6) any combination of the foregoing which, when added to any Common Stock issued upon such exercise, has an aggregate value equal to the Current Value, with such aggregate value determined in good faith by the Board of Directors, but if the Company has not made adequate provision to deliver the value determined in accordance with clause (B) above within 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall deliver, upon surrender of a Right for exercise and without requiring payment of the Exercise Price, Common Stock (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board of Directors determines in good faith that it is likely that sufficient additional Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not to more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares of stock (that period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action must be taken pursuant to the first or second sentence of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e), that such action will apply uniformly to all outstanding Rights, and kind (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares as or to decide the Holder would have owned had appropriate form of distribution to be made pursuant to that first sentence and to determine the Warrant value thereof. On any such suspension, the Company shall promptly notify the Rights Agent in writing of such suspension and shall issue a public announcement stating that the exercisability of the Rights has been exercised prior temporarily suspended and another public announcement when the suspension is no longer in effect (with prompt written notice to the event and had the Holder continued to hold Rights Agent that such shares until after the event requiring adjustmentsuspension is no longer in effect). The form For purposes of this Warrant need not Section 11(a)(iii), the value of a share of Common Stock will be changed because the Fair Market Value (as determined pursuant to Section 11(d)) of any adjustment in a share of Common Stock on the number of Exercise Shares subject to this WarrantSection 11(a)(ii) Trigger Date.
(b) If at any time the Company fixes a record date for the issuance of rights, options or from time warrants to time the all holders of Common Preferred Stock entitling them (for a period expiring within 45 calendar days after that record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per Preferred Stock Equivalent (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d)) per share of Preferred Stock on that record date, the Exercise Price to be in effect after that record date will be determined by multiplying the Exercise Price in effect immediately prior to that record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on that record date, plus the number of shares of Preferred Stock which the aggregate offering price of the Company total number of shares of Preferred Stock or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities to be so offered) would purchase at that Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on that record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at to be so offered are initially convertible), but in no event will the time receivable consideration to be paid upon the exercise of this Warrant) shall have received a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. If the subscription price may be paid in a consideration part or become entitled all of which is in a form other than cash, the value of such consideration will be the Fair Market Value thereof determined in accordance with Section 11(d). Preferred Stock owned by or held for the account of the Company will not be considered outstanding for the purpose of any such computation. Those adjustments will be made successively whenever any such record date is fixed and if any such rights or warrants are not so issued, the Exercise Price will be adjusted to receive, without payment therefor,be the Exercise Price that would then be in effect if the applicable record date had not been fixed.
(ic) Common If the Company fixes a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation) of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stockthan a regular periodic cash dividend), or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution assets (other than a dividend payable in Preferred Stock, but including any dividend payable in capital stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after that record date will be determined by multiplying the Exercise Price in effect immediately prior to that record date by a fraction, the numerator of which will be the Fair Market Value (as determined pursuant to Section 11(d)) of one one-thousandth of a share of Preferred Stock on that record date, less the Fair Market Value (as determined pursuant to Section 11(d)) of the portion of the cash, assets or evidences of indebtedness to be so distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which will be the Fair Market Value (as determined pursuant to Section 11(d)) of one one-thousandth of a share of Preferred Stock, but in no event will the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. Those adjustments will be made successively whenever any such record date is fixed, and if any such distribution covered is not so made, the Exercise Price will again be adjusted to be the Exercise Price that would be in section 5(a) above),effect if the applicable record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other share or any Right or other security or any other property will be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date will be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as defined herein) immediately prior to, but not including, such date; however, if the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock, or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to, but not including, the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value will be properly adjusted to take into account ex-dividend trading. The closing price for each day will be the last sale price, upon regular way, or, if no such sale takes place on such day, the exercise average of this Warrantthe closing bid and asked prices, be entitled to receiveregular way, in addition either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date will be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors, and without payment but if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date will be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination will be described in a reasonably detailed statement filed with the Rights Agent and other will be binding on the Rights Agent and the holders of the Rights. The term "Trading Day" means a day on which the principal national securities and property (including cash exchange on which such security is listed or admitted to trading, or if not listed or admitted to trading on any national securities exchange, in the cases referred over-the-counter market, as reported by NASDAQ or such other system then in use, is open for the transaction of business or, if such security is not listed or admitted to in clauses (ii) and (iii) above) which such Holder would hold trading on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other any national securities and propertyexchange, a Business Day.
Appears in 1 contract
Samples: Shareholder Rights Agreement (Thornburg Mortgage Inc)
Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.of
Appears in 1 contract
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
11.1.1 In the event the Company shall at any time after the date of this Agreement (a) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (b) subdivide the outstanding Preferred Stock, (c) combine the outstanding Preferred Stock into a smaller number of shares or (d) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11.1 and Section 7.5 hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11.1.1 and Section 11.1.2 hereof, the adjustment provided for in this Section 11.1.1 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11.1.2 hereof.
11.1.2 Subject to the provisions of Section 24 hereof, in the event any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person (a "Section 11.1.2 Event"), then promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7.5 hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company as shall equal the result obtained by (a) multiplying the then current Exercise Price by the then number of one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11.1.2 Event, whether or not such Right was then exercisable, and dividing that product by (b) 50% of the Fair Market Value per one one-thousandth of a share of the Preferred Stock (determined pursuant to Section 11.4) on the date of the occurrence of a Section 11.1.2 Event (such number of shares being referred to as the "Adjustment Shares").
11.1.3 In lieu of issuing any shares of Preferred Stock in accordance with Section 11.1.2 hereof, the Company, acting by or pursuant to resolution of the Board of Directors, may, and in the event that the number of shares of Preferred Stock which are authorized by the Company's Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing Section 11.1.2, the Company, acting by or pursuant to resolution of the Board of Directors, shall: (a) determine the excess of (i) the Fair Market Value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (ii) the Exercise Price attributable to each Right (such excess being referred to as the "Spread") and (b) with respect to all or a portion of each Right (subject to Section 7.5 hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price, (1) cash, (2) a reduction in the Exercise Price, (3) Preferred Stock Equivalents which the Board of Directors has deemed to have the same value as shares of Common Stock of the Company, (4) debt securities of the Company, (5) other assets of the Company or (6) any combination of the foregoing which, when added to any shares of Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (b) above within thirty (30) days following the later of (x) the first occurrence of a Section 11.1.2 Event and (y) the date on which the Company's right of redemption pursuant to Section 23.1 expires (the later of (x) and (y) being referred to herein as the "Section 11.1.2 Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Exercise Price, shares of Preferred Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of Preferred Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11.1.2 Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, being referred to herein as the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11.1.3, the Company (1) shall provide, subject to Section 7.5 hereof, that such action shall apply uniformly to all outstanding Rights and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of changes any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11.1.3, the value of the Preferred Stock shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per share of the Preferred Stock on the Section 11.1.2 Trigger Date and the value of any Preferred Stock Equivalent shall be deemed to have the same value as the Preferred Stock on such date.
11.2 If the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11.4 hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding Common on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company by reason issuable upon exercise of stock dividends, split-ups, recapitalizations, reclassifications, combinations a Right. In case such subscription price may be paid in a consideration part or exchanges all of shares, separations, reorganizations, liquidations, or the likewhich shall be in a form other than cash, the number value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11.4 hereof. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and class of shares available under the Warrant in the aggregate and event that such rights or warrants are not so issued, the Exercise Price shall be correspondingly adjusted to give be the Holder Exercise Price which would then be in effect if such record date had not been fixed.
11.3 If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time earnings or from time to time the holders of Common Stock retained earnings of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receiveCompany), without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11.2, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per one one-thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11.4 hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per one one-thousandth of a share of Preferred Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(ii) 11.4 For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11.4.
11.4.1 In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (a) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashb) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last sale price as reported by Nasdaq for securities listed on the Nasdaq National Market or, in case no such sale takes place on such day, the average of the closing bid and asked prices as reported by Nasdaq; or, if not listed or admitted to trading on a national securities exchange or the Nasdaq National Market, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by Nasdaq or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date shall be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors of the Company, and without payment provided, however, that if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date Fair Market Value of such exercise had he been security on such date shall be determined by a nationally recognized investment banking firm selected by the holder Board of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.Directors, which
Appears in 1 contract
Samples: Shareholders' Rights Agreement (Tweeter Home Entertainment Group Inc)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR ---------------------------------------------------------------------- NUMBER OF RIGHTS. ---------------- The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Common Stock payable in shares of Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11 (a) and Section 7 (e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11 (a) (i) and Section 11 (a) (ii) hereof, the adjustment provided for in this Section 11 (a) (i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11 (a) (ii) hereof.
(ii) Subject to the provisions of Sections 23 and 24 hereof, in the outstanding event that any Person (other than an Exempt Person), alone or together with its Affiliates and Associates, shall become an Acquiring Person then, in such case, promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7 (e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or (x) multiplying the like, then current Exercise Price by the then number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise Common Stock for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) 50% of the Fair Market Value per share of the Common Stock (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(a)(ii), the Company shall take all action as may be necessary to authorize and had reserve for issuance such number of additional shares of Common Stock as may from time to time be required to be issued upon the Holder continued exercise in full of all Rights outstanding and, if necessary, shall use its best efforts to hold obtain shareholder approval thereof. Notwithstanding the foregoing provisions of this Section 11(a)(iii), in lieu of issuing shares of Common Stock in accordance with Section 11(a)(ii) hereof, (A) if a majority of the Directors then in office determines that such action is necessary or appropriate and is not contrary to the interests of the holders of the Rights, they may elect to cause the Company to pay, /or (B) if sufficient shares until of Common Stock cannot be issued for such purpose in accordance with the provisions hereof, then the Company shall issue or pay, upon the exercise of the Rights, cash, property, debt securities, shares of Common stock or other capital stock, or any combination thereof, having an aggregate Fair Market Value equal to the Fair Market Value of the shares of Common Stock which otherwise would have been issuable pursuant to Section 11(a)(ii). Any such election by a majority of the Directors of the Company must be made and publicly announced within 30 days after the event requiring adjustment. The form of this Warrant need not be changed because of date on which any adjustment in Section 11(a)(ii) Event first occurs following the number of Exercise Shares subject to this WarrantStock Acquisition Date.
(b) If at any time the Company shall fix a record date for the issuance of rights, options or from time warrants to time the all holders of Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Common Stock ("Common stock equivalents")) or securities convertible into Common Stock or Common stock equivalents at a price per share of Common Stock or per share of Common stock equivalents (or having a conversion price per share, if a security convertible into Common Stock or Common stock equivalents) less than the Fair Market Value (as determined pursuant to Section 11 (d) hereof) per share of Common Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the Company total number of shares of Common Stock to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Common Stock outstanding on such record date, plus the number of additional shares of Common Stock and Common stock equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at so to be offered are initially convertible); PROVIDED, however, that in no event shall the time receivable consideration to be paid upon the exercise of this Warranta Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Common Stock owned by or held for the account of the Company shall have received not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights or become entitled warrants are not so issued, the Exercise Price shall be adjusted to receive, without payment therefor,be the Exercise Price which would then be in effect if such record date had not been fixed.
(ic) If the Company shall fix a record date for the making of a distribution to all holders of Common Stock (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation) of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend payable in Common Stock, but including any dividend payable in stock other than Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) ), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11 (d) hereof) per share of Common Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to each share of Common Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per share of Common Stock; PROVIDED, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Common Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the American Stock Exchange or, if the securities are not listed or admitted to trading on the American Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date shall be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors of the Company; PROVIDED, and without payment however, that if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and other securities shall be binding on the Rights Agent and property (including cash in the cases referred to in clauses holders of the Rights.
(ii) If the Common Stock is not publicly held or not so listed or traded, "Fair Market Value" shall mean the fair value per share of stock or per other unit of such security, determined reasonably and (iii) above) with utmost good faith to the holders of the Rights by the Board of Directors of the Company; PROVIDED, however, that if at the time of such determination there is an Acquiring Person, the Fair Market Value of such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which such Holder would hold determination shall be described in a statement filed with the Rights Agent and shall be binding on the date of such exercise had he been Rights Agent and the holder of record of such Common Stock as holders of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and propertyRights.
Appears in 1 contract
Samples: Shareholder Rights Agreement (Alpha Industries Inc)
Adjustment of Exercise Price. NUMBER OF COMMON UNITS OR NUMBER OF WARRANTS. The Exercise Price, the number of Common Units covered by each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 10.
(a) In case the event Company shall at any time after the date of changes this Agreement (i) pay dividends or distributions on the Common Units in Common Units, (ii) subdivide or split up the outstanding Common Stock Units into a greater number of Common Units, (iii) combine or effect a reverse split of the outstanding Common Units into a smaller number of Common Units, or (iv) issue any Common Units in a reclassification of the Common Units (other than in a transaction covered by Section 12), the Exercise Price in effect at the time immediately prior to such dividend, distribution, issuance, subdivision, split up, reverse split, or combination, and the number of and kind of Common Units issuable at such time upon exercise of the Warrants shall be proportionately adjusted so that the Holder of any Warrant exercised after such time shall be entitled to receive the aggregate number and kind of Common Units which, if such Warrant had been exercised immediately prior to such time, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, distribution, subdivision, split up, reverse split, combination, or issuance, subject to the provisions of Section 10(e) hereof. Such adjustment shall be made successively whenever any event listed above shall occur.
(b) In case the Company shall distribute rights, options or warrants to all holders of Common Units entitling them to subscribe for or purchase Common Units (or securities convertible into Common Units), other than any transaction covered by Section 10(a) or Permitted Issuances, at a price per Common Unit (or having a conversion price per Common Unit, if a security convertible into Common Units) less than ninety percent (90%) of the Current Market Price per Common Unit on the date of such distribution, then the Exercise Price to be in effect after such distribution shall be determined by multiplying the Exercise Price immediately prior to such distribution by a fraction, of which the numerator shall be the number of Common Units outstanding immediately prior to such distribution plus the number of Common Units which the aggregate offering price of the total number of Common Units so to be offered (or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price and of which the denominator shall be the number of Common Units outstanding immediately prior to such distribution plus the number of additional Common Units so to be offered for subscription or purchase (or into which the convertible securities to be offered are initially convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined by the Board of Directors, whose determination shall be conclusive, and described in a statement filed with the Warrant Agent. Common Units owned by or held for the account of the Company by reason shall not be deemed outstanding for the purpose of stock dividendsany such computation. Such adjustment shall be made successively whenever such a distribution occurs, split-ups, recapitalizations, reclassifications, combinations or exchanges subject to Section 10(d) hereof. No further adjustments of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give made upon the Holder actual issuance of Common Units upon exercise of such rights, options or warrants (or the Warrantconversion of such convertible securities); provided, on exercise for however, that in the same aggregate Exercise Priceevent any such rights, options or warrants are not exercised (or, in the total numbercase of convertible securities, class, and kind of shares as the Holder would have owned had the Warrant been exercised are not converted) prior to the event and had respective expiration dates thereof, then, on each such expiration date, the Holder continued Exercise Price shall be readjusted to hold reverse the adjustment made pursuant to this Section 10(b) in respect of such shares until after number(s) of rights, options or warrants that were not exercised (or, in the case of convertible securities, were not converted) prior to such expiration date. Notwithstanding anything to the contrary set forth in this Section 10(b), in the event requiring adjustment. The form the Company shall distribute any rights, options or warrants to subscribe for or purchase Common Units or any securities convertible into Common Units (other than Permitted Issuances or any transaction covered by Section 10(a)) pursuant to any so-called "poison pill" or shareholders' rights or similar plan or agreement, the distribution of separate certificates representing such rights, options or warrants subsequent to their initial distribution shall be deemed to be the distribution thereof for purposes of this Section 10(b); provided that the Company may, in lieu of making any adjustment pursuant to this Section 10(b) upon such a distribution of separate certificates, make proper provision so that each Holder of Warrants who exercises such Warrants (or any portion thereof) (i) after such initial distribution but before such distribution of separate certificates shall be entitled to receive upon such exercise Common Units issued with such rights, options or warrants and (ii) after such distribution of separate certificates and prior to the expiration, redemption or termination of such rights, options or warrants shall be entitled to receive upon such exercise, in addition to the Common Units issuable upon such exercise, the same number of such rights, options or warrants as would have accompanied such Common Units had such Warrants been exercised immediately prior to such distribution of separate certificates.
(c) In case the Company shall distribute to all holders of Common Units evidences of indebtedness, assets or rights, options or warrants to subscribe for or purchase any evidences of indebtedness, rights, options, warrants or assets (other than Permitted Issuances, cash distributions and those distributions referred to in Sections 10(a) and 10(b) hereof), the Exercise Price to be in effect after such distribution shall be determined by multiplying the Exercise Price in effect immediately prior to such distribution by a fraction, of which the numerator shall be the Current Market Price per Common Unit on the date of such distribution, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive, and described in a statement filed with the Warrant need not Agent) of the portion of the assets, evidences of indebtedness, rights, options or warrants so to be changed because distributed, applicable to one Common Unit, and of any which the denominator shall be such Current Market Price per Common Unit. Such adjustments shall be made successively whenever such a distribution occurs, subject to Section 10(d) hereof.
(d) No adjustment in the number Exercise Price shall be required unless such adjustment, together with any amount being carried forward as hereinafter provided, would require an increase or decrease of Exercise Shares subject at least 1% in such price; provided, however, that any adjustments which by reason of this Section 10(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 10 shall be made to the nearest cent or to the nearest one-hundredth of a Common Unit, as the case may be. Notwithstanding the first sentence of this Section 10(d), any adjustment required by this Section 10 shall be made no later than the expiration of the right to exercise any Warrant.
(be) If In the event that at any time or time, as a result of an adjustment made pursuant to Section 10(a) hereof, the Holder of any Warrant thereafter exercised shall become entitled to receive any securities of the Company other than Common Units, thereafter the number of such other securities so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Units contained in Section 10(a) through (c) hereof, inclusive, and the provision of this Agreement with respect to the Common Units shall apply on like terms to any such other securities.
(f) Irrespective of any adjustments in the Exercise Price or the number of Common Units issuable upon the exercise of Warrants, Warrant Certificates theretofore or thereafter issued may continue to express the Exercise Price and the number of Common Units as are stated in the Warrant Certificates issuable initially, or at some subsequent time, pursuant to this Agreement, and the Exercise Price and such number of Common Units specified thereon shall be deemed to have been so adjusted.
(g) Upon each adjustment of the Exercise Price as a result of the calculations made in Section 10(b) or 10(c) hereof, each Warrant outstanding immediately prior to the making of such adjustment shall thereafter be deemed to evidence the right to purchase, at the adjusted Exercise Price, that number of Common Units (calculated to the nearest one-hundredth) obtained by (i) multiplying the number of Common Units covered by a Warrant immediately prior to this adjustment of the number of Common Units by the Exercise Price in effect immediately prior to such adjustment of the Exercise Price and (ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price.
(h) Anything in this Section 10 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments required by this Section 10, as it in its sole discretion shall determine to be advisable in order that the following action shall not be taxable to the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
Units: (i) any consolidation or subdivision of the Common Stock Units, (ii) issuance to such holders of Common Units wholly for cash of any Common Units at less than the Current Market Price, (iii) issuance to such holders of Common Units wholly for cash of Common Units or any shares of stock or other securities which by their terms are at any time directly or indirectly convertible into or exchangeable for Common StockUnits, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(iiiv) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant Unit distribution to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received Units or became entitled (v) issuance to receive such shares holders of Common Units of rights, options or all other additional stock and other securities and propertywarrants referred to hereinabove in this Section 10.
Appears in 1 contract
Samples: Warrant Agreement (Eott Energy LLC)
Adjustment of Exercise Price. (a) In the event that the Company ---------------------------- shall sell or issue shares of changes in the outstanding Common Stock at any time after the date of the Company by reason issuance of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidationsthis Warrant and prior to its termination, or complete an initial public offering of its Common Stock (whichever shall occur first) at a consideration per share less than the likeExercise Price, the number and class of shares available under the Warrant in the aggregate and then the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate a new Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior Price equal to the event and had consideration per share received by the Holder continued to hold Company for such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this WarrantCommon Stock.
(b) If If, at any time or from time to time after the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receivedate hereof, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment outstanding is increased by a stock dividend payable in shares of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as or by a subdivision or split-up of shares of Common Stock, then, following the record date on which fixed for the determination of holders of Common Stock received or became entitled to receive such stock dividend, subdivision or split-up, the Exercise Price in effect at such time shall be decreased such that the aggregate number of Common Stock issuable upon exercise of this Warrant as of such record date shall be increased in proportion to such increase in outstanding shares.
(c) If, at any time after the date hereof, the number of shares of Common Stock outstanding is decreased by a combination of the outstanding shares of Common Stock, then, following the record date for such combination, the Exercise Price in effect at such time shall be increased such that the aggregate number of Common Stock issuable upon exercise of this Warrant as of such record date shall be decreased in proportion to such decrease in outstanding shares.
(d) If, at any time after the date hereof, any capital reorganization, or all any reclassification of the capital stock of the Company (other additional than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares) or the consolidation or merger of the Company with or into another entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any change in the Common Stock) shall be consummated, then this Warrant shall be exercisable after such reorganization, reclassification, consolidation, merger, sale or other disposition into the kind and number of shares of stock or other securities or property of the Company to which the holder of the number of shares of Common Stock (immediately prior to the time of such reorganization or reclassification) issuable upon exercise of this Warrant would have been entitled upon such reorganization, reclassification, consolidation, merger, sale or other disposition. The provisions of this Section 4 shall similarly apply to successive reorganizations or reclassifications.
(e) Upon any adjustment to the Exercise Price hereunder, the number of Common Stock purchasable upon the exercise of this Warrant shall be adjusted to the number obtained by dividing (i) an amount equal to the product of (x) the number of Common Stock purchasable hereunder immediately prior to such adjustment multiplied by (y) the Exercise Price immediately prior to such adjustment, by (ii) the Exercise Price immediately after such adjustment.
(f) All calculations under this Section 4 shall be made to the nearest one-thousandth of a cent ($.001) or to the nearest one-thousandth of a share, as the case may be.
(g) Immediately upon any adjustment of the Exercise Price pursuant to the terms of this Section 4, the Company shall give written notice thereof to the Holder, setting forth in reasonable detail and propertycertifying the calculation of such adjustment.
Appears in 1 contract
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to the provisions of Section 24 hereof, in the event
(A) any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, or
(B) the Board of Directors, by majority vote, shall declare any Person to be an Adverse Person, after (x) a determination that such Person, alone or together with its Affiliates and Associates, has become the Beneficial Owner of 10% or more of the outstanding shares of Common Stock of the Company and (y) a determination by reason the Board of stock dividendsDirectors, splitafter reasonable inquiry and investigation, including such consultation, if any, with such persons as such directors shall deem appropriate, that (a) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or will cause the Company to repurchase the Common Stock of the Company beneficially owned by such Person or to cause pressure on the Company to take action or enter into a transaction or series of transactions which would provide such Person with short-upsterm financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company and its shareholders, recapitalizationsbut for the actions and possible actions of such Person, reclassifications, combinations would not be served by taking such action or exchanges entering into such transactions or series of shares, separations, reorganizations, liquidationstransactions at that time, or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the likeCompany's ability to maintain its competitive position) on the business or prospects of the Company. No delay or failure by the Board of Directors to declare a Person to be an Adverse Person shall in any way waive or otherwise affect the power of the Board of Directors subsequently to declare a Person to be an Adverse Person. In the event that the Board of Directors should at any time determine, upon reasonable inquiry and investigation, including consultation with such Persons as the Board of Directors shall deem appropriate, that such Person has not met or complied with any condition specified by the Board of Directors, the Board of Directors may at any time thereafter declare such Person to be an Adverse Person pursuant to the provisions of this Section 11(a)(ii)(B), then, and in each such case, promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number and class of shares available under of Preferred Stock of the Warrant Company as shall equal the result obtained by (x) multiplying the then current Exercise Price by the then number of one one-thousandth of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and dividing that product by (y) 50% of the Fair Market Value per one one-thousandth of a share of the Preferred Stock (determined pursuant to Section 11(d)) on the date of the occurrence of a Section 11(a)(ii) Event (such number of shares being referred to as the "ADJUSTMENT SHARES").
(iii) In lieu of issuing any shares of Preferred Stock in accordance with Section 11(a)(ii) hereof, the Company, acting by or pursuant to resolution of the Board of Directors, may, and in the aggregate and event that the number of shares of Preferred Stock which are authorized by the Company's Articles of Organization but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by or pursuant to resolution of the Board of Directors, shall: (A) determine the excess of (X) the Fair Market Value of the Adjustment Shares issuable upon the exercise of a Right (the "CURRENT VALUE") over (Y) the Exercise Price shall be correspondingly adjusted attributable to give each Right (such excess being referred to as the Holder "SPREAD") and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the Warrant, on exercise for the same aggregate applicable Exercise Price, (1) cash, (2) a reduction in the total numberExercise Price, class(3) Preferred Stock Equivalents which the Board of Directors has deemed to have the same value as shares of Common Stock of the Company, (4) debt securities of the Company, (5) other assets of the Company, or (6) any combination of the foregoing which, when added to any shares of Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and kind (y) the date on which the Company's right of shares redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the Holder would have owned had "SECTION 11(a)(ii) TRIGGER DATE"), then the Warrant been exercised prior Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Exercise Price, shares of Preferred Stock (to the event extent available) and had then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Holder continued Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of Preferred Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to hold such shares until the extent necessary, but not more than ninety (90) days after the event requiring adjustmentSection 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, being referred to herein as the "SUBSTITUTION PERIOD"). The To the extent that the Company determines that some action needs to be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of this Warrant need not distribution to be changed because made pursuant to such first sentence and to determine the value thereof. In the event of any adjustment such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the number value of Exercise Shares subject the Preferred Stock shall be the Fair Market Value (as determined pursuant to this WarrantSection 11(d) hereof) per share of the Preferred Stock on the Section 11(a)(ii) Trigger Date and the value of any Preferred Stock Equivalent shall be deemed to have the same value as the Preferred Stock on such date.
(b) If at any time the Company shall fix a record date for the issuance of rights, options or from time warrants to time the all holders of Common Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("PREFERRED STOCK EQUIVALENTS")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the Company total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at so to be offered are initially convertible); provided, however, that in no event shall the time receivable consideration to be paid upon the exercise of this Warranta Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Preferred Stock owned by or held for the account of the Company shall have received not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such rights or become entitled warrants are not so issued, the Exercise Price shall be adjusted to receive, without payment therefor,be the Exercise Price which would then be in effect if such record date had not been fixed.
(ic) Common If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation), of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend or distribution covered payable in section 5(a) above),
(ii) Preferred Stock, but including any cash paid or dividend payable otherwise than as a cash dividend, or
(iii) Common Stock or additional in stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of Common Stock which shall be the Fair Market Value (as determined pursuant to Section 5(a11(d) above)hereof) per one one-thousandth of a share of Preferred Stock on such record date, then less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one one-thousandth of a share of Preferred Stock; provided, however, that in each such case, no event shall the Holder hereof will, consideration to be paid upon the exercise of this Warrant, a Right be entitled to receive, in addition to less than the number aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in effect if such record date had not been fixed.
(d) For the purpose of this Agreement, the "FAIR MARKET VALUE" of any share of Preferred Stock, Common Stock receivable thereuponor any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, and without payment the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any additional consideration therefor, the amount share of stock and other securities and property (including cash in is determined during a period following the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on announcement by the date issuer of such exercise had he been the holder stock of record (x) a dividend or distribution on such stock payable in shares of such Common Stock as of the date on which holders of Common Stock received stock or became entitled to receive such shares or all other additional stock and other securities and property.securities
Appears in 1 contract
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to the provisions of Section 24 hereof, in the event any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, then, promptly following any such occurrence (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company as shall equal the result obtained by (x) multiplying the then current Exercise Price by the then number of one ten-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and dividing that product by (y) 50% of the Fair Market Value per one ten-thousandth of a share of the Preferred Stock (determined pursuant to Section 11(d)) on the date of the occurrence of a Section 11(a)(ii) Event (such number of shares being referred to as the "Adjustment Shares").
(iii) In lieu of issuing any shares of Preferred Stock in accordance with Section 11(a)(ii) hereof, the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, may, and in the event that the number of shares of Preferred Stock which are authorized by the Company's Articles of Organization but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, shall: (A) determine the excess of (X) the Fair Market Value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (Y) the Exercise Price attributable to each Right (such excess being referred to as the "Spread") and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price, (1) Common Stock of the Company by reason of stock dividendsCompany, split-ups(2) cash, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant (3) a reduction in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, (4) Preferred Stock Equivalents which the total numberBoard of Directors of the Company has deemed to have the same value as shares of Common Stock of the Company, class(5) debt securities of the Company, (6) other assets or securities of the Company or (7) any combination of the foregoing which, when added to any shares of Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; PROVIDED, HOWEVER, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and kind (y) the date on which the Company's right of shares redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the Holder would have owned had "Section 11(a)(ii) Trigger Date"), then the Warrant been exercised prior Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Exercise Price, shares of Preferred Stock (to the event extent available) and had then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Holder continued Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Preferred Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to hold such shares until the extent necessary, but not more than ninety (90) days after the event requiring adjustmentSection 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, being referred to herein as the "Substitution Period"). The To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of this Warrant need not distribution to be changed because made pursuant to such first sentence and to determine the value thereof. In the event of any adjustment such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the number value of Exercise Shares subject the Preferred Stock shall be the Fair Market Value (as determined pursuant to this WarrantSection 11(d) hereof) per share of the Preferred Stock on the Section 11(a)(ii) Trigger Date and the value of any Preferred Stock Equivalent shall be deemed to have the same value as the Preferred Stock on such date.
(b) If at any time the Company shall fix a record date for the issuance of rights, options or from time warrants to time the all holders of Common Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the Company total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at so to be offered are initially convertible); PROVIDED, HOWEVER, that in no event shall the time receivable consideration to be paid upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any a Right be less than the aggregate par value of the shares of stock of the Company issuable upon exercise of a Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other securities which are at than cash, the value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11(d) hereof. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any time directly or indirectly convertible into or exchangeable for Common Stock, or any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such rights or options warrants are not so issued, the Exercise Price shall be adjusted to subscribe forbe the Exercise Price which would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), purchase or otherwise acquire any of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the foregoing by way earnings or retained earnings of dividend or other distribution the Company), assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one ten-thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one ten-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11(d) hereof) per one ten-thousandth of a share of Preferred Stock; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration thereforcase no such sale takes place on such day, the amount average of stock the closing bid and other securities and property (including cash asked prices, regular way, in either case as reported in the cases referred principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in clauses (ii) and (iii) above) the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Holder would hold security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the date of such exercise had he been last quoted price (or, if not so quoted, the holder of record of such Common Stock as average of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.last
Appears in 1 contract
Samples: Shareholder Rights Agreement (Genzyme Transgenics Corp)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to the provisions of Section 24 hereof, in the outstanding Common event any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, then, promptly following any such occurrence (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or as shall equal the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.result obtained by
Appears in 1 contract
Samples: Shareholder Rights Agreement (Albany Molecular Research Inc)
Adjustment of Exercise Price. Number and Kind of Shares or Number of -------------------------------------------------------------------- Rights. The Exercise Price, the number and kind of shares covered by each ------ Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
11.1.1 In the event the Company shall at any time after the date of this Agreement (a) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (b) subdivide the outstanding Preferred Stock, (c) combine the outstanding Preferred Stock into a smaller number of shares or (d) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11.1 and Section 7.5 hereof, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11.1.1 and Section 11.1.2 hereof, the adjustment provided for in this Section 11.1.1 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11.1.2 hereof.
11.1.2 Subject to the provisions of Section 24 hereof, in the event any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person (a "Section 11.1.2 Event"), then promptly following any such occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7.5 hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Exercise Price in accordance with the terms of this Agreement, such number of shares of Preferred Stock of the Company as shall equal the result obtained by (a) multiplying the then current Exercise Price by the then number of one one-thousandth of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11.1.2 Event, whether or not such Right was then exercisable, and dividing that product by (b) 50% of the Fair Market Value per one one-thousandth of a share of the Preferred Stock (determined pursuant to Section 11.4) on the date of the occurrence of a Section 11.1.2 Event (such number of shares being referred to as the "Adjustment Shares").
11.1.3 In lieu of issuing any shares of Preferred Stock in accordance with Section 11.1.2 hereof, the Company, acting by or pursuant to resolution of the Board of Directors, may, and in the event that the number of shares of Preferred Stock which are authorized by the Certificate but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing Section 11.1.2, the Company, acting by or pursuant to resolution of the Board of Directors, shall: (a) determine the excess of (i) the Fair Market Value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (ii) the Exercise Price attributable to each Right (such excess being referred to as the "Spread") and (b) with respect to all or a portion of each Right (subject to Section 7.5 hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price, (1) cash, (2) a reduction in the Exercise Price, (3) Preferred Stock Equivalents which the Board of Directors has deemed to have the same value as shares of Common Stock of the Company, (4) debt securities of the Company, (5) other assets of the Company or (6) any combination of the foregoing which, when added to any shares of Preferred Stock issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (b) above within thirty (30) days following the later of (x) the first occurrence of a Section 11.1.2 Event and (y) the date on which the Company's right of redemption pursuant to Section 23.1 expires (the later of (x) and (y) being referred to herein as the "Section 11.1.2 Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Exercise Price, shares of Preferred Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of Preferred Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11.1.2 Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, being referred to herein as the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11.1.3, the Company (1) shall provide, subject to Section 7.5 hereof, that such action shall apply uniformly to all outstanding Rights and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of changes any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11.1.3, the value of the Preferred Stock shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per share of the Preferred Stock on the Section 11.1.2 Trigger Date and the value of any Preferred Stock Equivalent shall be deemed to have the same value as the Preferred Stock on such date.
11.2 If the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into Preferred Stock or Preferred Stock Equivalents at a price per share of Preferred Stock or per share of Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or Preferred Stock Equivalents) less than the Fair Market Value (as determined pursuant to Section 11.4 hereof) per share of Preferred Stock on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding Common on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or Preferred Stock Equivalents to be offered (and the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Fair Market Value and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and Preferred Stock Equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company by reason issuable upon exercise of stock dividends, split-ups, recapitalizations, reclassifications, combinations a Right. In case such subscription price may be paid in a consideration part or exchanges all of shares, separations, reorganizations, liquidations, or the likewhich shall be in a form other than cash, the number value of such consideration shall be the Fair Market Value thereof determined in accordance with Section 11.4 hereof. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and class of shares available under the Warrant in the aggregate and event that such rights or warrants are not so issued, the Exercise Price shall be correspondingly adjusted to give be the Holder Exercise Price which would then be in effect if such record date had not been fixed.
11.3 If the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time earnings or from time to time the holders of Common Stock retained earnings of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receiveCompany), without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11.2, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per one one-thousandth of a share of Preferred Stock on such record date, less the Fair Market Value (as determined pursuant to Section 11.4 hereof) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-thousandth of a share of Preferred Stock and the denominator of which shall be the Fair Market Value (as determined pursuant to Section 11.4 hereof) per one one-thousandth of a share of Preferred Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution covered is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would be in section 5(a) above),effect if such record date had not been fixed.
(ii) 11.4 For the purpose of this Agreement, the "Fair Market Value" of any cash paid or payable otherwise than as a cash dividendshare of Preferred Stock, or
(iii) Common Stock or additional any other stock or any Right or other security or any other property shall be determined as provided in this Section 11.4.
11.4.1 In the case of a publicly-traded stock or other security, the Fair Market Value on any date shall be deemed to be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (a) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashb) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, upon the exercise of this Warrantregular way, be entitled to receiveor, in addition case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last sale price as reported by Nasdaq for securities listed on the Nasdaq National Market or, in case no such sale takes place on such day, the average of the closing bid and asked prices as reported by Nasdaq; or, if not listed or admitted to trading on a national securities exchange or the Nasdaq National Market, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by Nasdaq or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date shall be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors of the Company, and without payment provided, however, that if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and other shall be binding on the Rights Agent and the holders of the Rights. The term "Trading Day" shall mean a day on which the principal national securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) exchange on which such Holder would hold security is listed or admitted to trading is open for the transaction of business or, if such security is not listed or admitted to trading on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other any national securities and propertyexchange, a Business Day.
Appears in 1 contract
Adjustment of Exercise Price. (a) In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the likeNUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and class kind of shares available under covered by each Right, and the Warrant number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) If the aggregate Company at any time after the date of this Agreement (A) declares a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivides the outstanding Preferred Shares, (C) combines the outstanding Preferred Shares into a smaller number of shares or (D) issues any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e), the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares as of capital stock issuable on such date, shall be proportionately adjusted so that the Holder holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books of the Company were open, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification, but in no event may the Warrant been exercised consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. If an event occurs that would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) will be in addition to, and will be made prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) Subject to Section 24, if any Person, alone or together with its Affiliates and Associates, becomes an Acquiring Person (a "Section 11(a)(ii) Event"), then promptly following that occurrence, proper provision shall be made so that each holder of a Right, except as provided in Section 7(e), thereafter has a right to receive, upon exercise thereof at the then current Exercise Price in accordance with this Agreement, such number of Preferred Shares of the Company as equals the result obtained by (x) multiplying the then current Exercise Price by the number of one ten-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the event first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and had dividing that product by (y) 50% of the Holder continued Fair Market Value (as defined herein) of one ten-thousandth of a Preferred Share (determined in accordance with Section 11(d)) on the date of the occurrence of that Section 11(a)(ii) Event (such number of shares being referred to hold such shares until after as the event requiring adjustment. The form "Adjustment Shares").
(iii) In lieu of this Warrant need not be changed because issuing any Preferred Shares in accordance with Section 11(a)(ii), the Company, acting by resolution of any adjustment in the Board of Directors, may, and if the number of Preferred Shares which are authorized by the Company's Amended and Restated Articles of Incorporation, as amended (or other instrument governing its corporate affairs), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board of Directors, shall: (A) determine the excess of (X) the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (Y) the Exercise Shares Price attributable to each Right (such excess being referred to as the "Spread") and (B) with respect to all or a portion of each Right (subject to Section 7(e)), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Exercise Price, (1) cash, (2) a reduction in the Exercise Price, (3) Preferred Share Equivalents which the Board of Directors has deemed to have the same value as Preferred Shares, (4) debt securities of the Company, (5) other assets of the Company or (6) any combination of the foregoing which, when added to any Preferred Shares issued upon such exercise, has an aggregate value equal to Current Value, with such aggregate value determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors; but if the Company has not made adequate provision to deliver the value determined in accordance with clause (B) above within 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall deliver, upon surrender of a Right for exercise and without requiring payment of the Exercise Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board of Directors determines in good faith that it is likely that sufficient additional Preferred Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not to more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (that period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action must be taken pursuant to the first or second sentence of this WarrantSection 11(a)(iii), the Company (x) shall provide, subject to Section 7(e), that such action will apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares or to decide the appropriate form of distribution to be made pursuant to that first sentence and to determine the value thereof. On any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and another public announcement when the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of a Preferred Share will be the Fair Market Value (as determined pursuant to Section 11(d)) of a Preferred Share on the Section 11(a)(ii) Trigger Date and the value of any Preferred Share Equivalent will be considered to have the same value as a Preferred Share on that date.
(b) If at any time the Company fixes a record date for the issuance of rights, options or from time warrants to time the all holders of Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after that record date) to subscribe for or purchase Preferred Shares (or securities -------------------------------------------------------------------------------- Page 15 18 having the same or more favorable rights, privileges and preferences as the Preferred Shares ("Preferred Share Equivalents")) or securities convertible into Preferred Shares or Preferred Share Equivalents at a price per Preferred Share or per Preferred Share Equivalent (or having a conversion price per share, if a security convertible into Preferred Shares or Preferred Share Equivalents) less than the Fair Market Value (as determined pursuant to Section 11(d)) per Preferred Share on that record date, the Exercise Price to be in effect after that record date will be determined by multiplying the Exercise Price in effect immediately prior to that record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on that record date, plus the number of Preferred Shares which the aggregate offering price of the Company total number of Preferred Shares or Preferred Share Equivalents to be offered (and the aggregate initial conversion price of the convertible securities to be so offered) would purchase at that Fair Market Value and the denominator of which shall be the number of Preferred Shares outstanding on that record date, plus the number of additional Preferred Shares and Preferred Share Equivalents to be offered for subscription or purchase (or any shares of stock or other into which the convertible securities at to be so offered are initially convertible), but in no event will the time receivable consideration to be paid upon the exercise of this Warrant) shall have received a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. If the subscription price may be paid in a consideration part or become entitled all of which is in a form other than cash, the value of such consideration will be the Fair Market Value thereof determined in accordance with Section 11(d). Preferred Shares owned by or held for the account of the Company will not be considered outstanding for the purpose of any such computation. Those adjustments will be made successively whenever any such record date is fixed; and if any such rights or warrants are not so issued, the Exercise Price will be adjusted to receive, without payment therefor,be the Exercise Price that would then be in effect if the applicable record date had not been fixed.
(ic) Common Stock If the Company fixes a record date for the making of a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or any shares merger in which the Company is the continuing or surviving corporation) of stock or evidences of indebtedness, cash (other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stockthan a regular periodic cash dividend), or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution assets (other than a dividend payable in Preferred Shares, but including any dividend payable in capital stock other than Preferred Shares) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after that record date will be determined by multiplying the Exercise Price in effect immediately prior to that record date by a fraction, the numerator of which will be the Fair Market Value (as determined pursuant to Section 11(d)) of one ten-thousandth of a Preferred Share on that record date, less the Fair Market Value (as determined pursuant to Section 11(d)) of the portion of the cash, assets or evidences of indebtedness to be so distributed or of such convertible securities, subscription rights or warrants applicable to one ten-thousandth of a Preferred Share and the denominator of which will be the Fair Market Value (as determined pursuant to Section 11(d)) of one ten-thousandth of a Preferred Share, but in no event will the consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of the Right. Those adjustments will be made successively whenever any such record date is fixed, and if any such distribution covered is not so made, the Exercise Price will again be adjusted to be the Exercise Price that would be in section 5(a) above),effect if the applicable record date had not been fixed.
(iid) For the purpose of this Agreement, the "Fair Market Value" of any cash paid Preferred Share, Common Share or payable otherwise than any other share or any Right or other security or any other property will be determined as a cash dividend, orprovided in this Section 11(d).
(iiii) Common Stock or additional In the case of a publicly-traded stock or other security, the Fair Market Value on any date will be the average of the daily closing prices per share of such stock or per unit of such other security for the 30 consecutive Trading Days (as defined herein) immediately prior to such date; however, if the Fair Market Value per share of any share of stock is determined during a period following the announcement by the issuer of such stock of (x) a dividend or distribution on such stock payable in shares of such stock or securities convertible into shares of such stock or property (including cashy) by way any subdivision, combination or reclassification of spinoffsuch stock, splitand prior to the expiration of the 30 Trading Day period after the ex-updividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above)then, then and in each such case, the Holder hereof willFair Market Value will be properly adjusted to take into account ex-dividend trading. The closing price for each day will be the last sale price, upon regular way, or, if no such sale takes place on such day, the exercise average of this Warrantthe closing bid and asked prices, be entitled to receiveregular way, in addition either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if not listed or admitted to trading on any national securities exchange, the last quoted price (or, if not so quoted, the average of the last quoted high bid and low asked prices) in the over-the-counter market, as reported by NASDAQ or such other system then in use; or, if on any such date no bids for such security are quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such security selected by the Board of Directors. If on any such date no market maker is making a market in such security, the Fair Market Value of such security on such date will be determined reasonably and with utmost good faith to the number holders of shares the Rights by the Board of Common Stock receivable thereuponDirectors, and without payment but if at the time of any additional consideration thereforsuch determination there is an Acquiring Person, the amount Fair Market Value of stock such security on such date will be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination will be described in a statement filed with the Rights Agent and other will be binding on the Rights Agent and the holders of the Rights. The term "Trading Day" means a day on which the principal national securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) exchange on which such Holder would hold security is listed or admitted to trading is open for the transaction of business or, if such security is not listed or admitted to trading on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other any national securities and propertyexchange, a Business Day.
Appears in 1 contract
Samples: Shareholder Rights Agreement (Developers Diversified Realty Corp)
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company by reason of stock dividendsis the continuing or surviving corporation), split-upsexcept as otherwise provided in this Section 11(a) and Section 7(e) hereof, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares as of capital stock issuable on such date, shall be proportionately adjusted so that the Holder holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned had upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; PROVIDED, HOWEVER, that in no event shall the Warrant been exercised consideration to be paid upon the exercise of a Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of a Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of to, any adjustment in the number of Exercise Shares subject required pursuant to this WarrantSection 11(a)(ii) hereof.
(bii) If at Subject to the provisions of Section 24 hereof, in the event
(A) any time Person, alone or from time together with its Affiliates and Associates, shall become an Acquiring Person, or
(B) the Board of Directors of the Company, by majority vote, shall declare any Person to time be an Adverse Person, after (x) a determination that such Person, alone or together with its Affiliates and Associates, has become the holders Beneficial Owner of 10% or more of the outstanding shares of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iiiy) above) which such Holder would hold on a determination by the date Board of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.Directors, after
Appears in 1 contract
Adjustment of Exercise Price. Subject to the provisions of this Section 3, the Exercise Price in effect from time to time shall be subject to adjustment as follows:
3.1 If the Company shall at any time after the date hereof (ai) In the event of changes in declare a dividend on the outstanding Common Stock payable in shares of its Common Stock, (ii) subdivide the Company by reason of stock dividendsoutstanding Common Stock, split-ups, recapitalizations, reclassifications, combinations or exchanges (iii) combine the outstanding Common Stock into a smaller number of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(biv) If at any time or from time to time the holders of Common Stock of the Company (or issue any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) its Common Stock by reclassification in connection with a consolidation or any shares of stock or other securities merger in which are at any time directly or indirectly convertible into or exchangeable for Common Stockthe Company is the continuing corporation, or any rights or options to subscribe forthen, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Exercise Price in effect and the number of Warrant Shares issuable upon exercise hereof at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, shall be proportionately adjusted so that the Holder hereof will, after such time shall be entitled to receive upon exercise hereof the aggregate number and kind of shares that such Holder would have owned upon exercise of this Warrant, be Warrant immediately before such time and been entitled to receivereceive by virtue of such dividend, subdivision, combination or reclassification.
3.2 If the Company shall distribute to all holders of Common Stock (including any such distribution made to the shareholders of the Company in connection with a consolidation or merger in which the Company is the continuing corporation) (i) evidences of its indebtedness, cash or assets (other than ordinary cash dividends paid out of the net profits of the Company for its most recent fiscal year), (ii) rights, options or warrants to subscribe for or purchase Common Stock, or (iii) any equity securities of the Company (other than Common Stock), including any securities convertible into or exchangeable for shares of Common Stock, then, in addition each case, the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately before the record date for the determination of shareholders entitled to receive such distribution by a fraction, the numerator of which shall be the Current Market Price (as determined pursuant to Section 3.6 hereof) per share of Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive absent manifest error) of the portion of the evidences of indebtedness or assets so to be distributed, or of such securities, rights, options, or warrants, or the amount of such cash, applicable to one share, and the denominator of which shall be such Current Market Price per share of Common Stock. Such adjustment shall become effective at the close of business on such record date.
3.3 In any case in which this Section 3 shall require that an adjustment in the number of Warrant Shares be made effective as of a record date for a specified event (an "Event"), the Company may elect to defer, until the occurrence of such Event, issuing to the Holder, if the Holder exercised this Warrant after such record date, the shares of Common Stock, if any, issuable upon such exercise over and above the number of Warrant Shares, if any, issuable upon such exercise on the basis of the number of Warrant Shares in effect prior to such adjustment; provided, however, that the Company shall deliver to the Holder a due bill or other appropriate instrument evidencing the Holder's right to receive such additional shares upon the occurrence of the Event requiring such adjustment.
3.4 Whenever there shall be an adjustment as provided in this Section 3, the Company shall within 15 days thereafter cause written notice thereof to be sent by registered or certified mail, postage prepaid, to the Holder, at its address as it shall appear in the Warrant Register, which notice shall be accompanied by an officer's certificate setting forth the number of Warrant Shares issuable hereunder and the Exercise Price thereof after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the computation thereof, which officer's certificate shall be conclusive evidence of the correctness of any such adjustment absent manifest error.
3.5 All calculations under this Section 3 shall be made to the nearest cent or the nearest one-thousandth of a share, as the case may be. No adjustment in the Exercise Price shall be required if such adjustment is less than $0.05; provided, however, that any adjustments that by reason of this Section 3.5 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. The Company shall not be required to issue fractions of shares of Common Stock receivable thereupon, and without payment or other capital stock of the Company upon the exercise of Warrants. If any additional consideration thereforfraction of a share would be issuable on the exercise of Warrants, the Company shall purchase such fraction for an amount in cash equal to the same fraction of stock and other securities and property the Current Market Price (including cash in the cases referred to in clauses (iias hereinafter defined) and (iii) above) which of such Holder would hold share of Common Stock on the date of such exercise had he been of the holder Warrants.
3.6 The Current Market Price per share of record of such Common Stock as of any date shall be the average of the daily closing prices for the 20 consecutive trading days immediately preceding the date in question. The closing price for each day shall be the last reported sales price regular way or, in case no such reported sale takes place on such day, the closing bid price regular way, in either case on the principal national securities exchange (including, for purposes hereof, the Nasdaq National Market or Small Cap Market) on which holders the Common Stock is listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the highest reported bid price of the Common Stock as furnished by the National Association of Securities Dealers, Inc. through Nasdaq, or a similar organization if Nasdaq is no longer reporting such information. If on any such date the Common Stock is not listed or admitted to trading on any national securities exchange and is not quoted by Nasdaq or any similar organization, the fair value of a share of Common Stock received or became entitled to receive on such shares or all other additional stock and other securities and propertydate, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive absent manifest error, shall be used.
Appears in 1 contract
Samples: Assignment and Assumption of Partnership Interest (Bigmar Inc)
Adjustment of Exercise Price. Number of Shares Issuable Upon Exercise of Rights or Number of Rights. The Exercise Price, the number and kind of securities that may be purchased upon exercise of a Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event that the Company shall at any time after the Close of changes Business on the Record Date and prior to the Close of Business on the earlier of the Redemption Date or the Expiration Date (A) declare or pay any dividend on the Preferred Shares payable in Preferred Shares or Voting Shares, (B) subdivide the outstanding Common Stock Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of Preferred Shares or (D) issue Preferred Shares or other securities of the Company by reason (other than those for which an adjustment is required under Section 11(b) hereof) in a reclassification of stock dividendsthe Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) or in a reorganization of the Company, split-upsthen, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the likeand upon each such event, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Preferred Shares subject to this Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable issuable upon the exercise of this Warrant) a Right on the date of such event shall have received be proportionately adjusted so that the holder of any Right exercised on or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each after such case, the Holder hereof will, upon the exercise of this Warrant, date shall be entitled to receive, upon the exercise thereof and payment of the Exercise Price, the aggregate number and kind of Preferred Shares or other securities or other property, as the case may be, that, if such Right had been exercised immediately prior to such date and at a time when such Right was exercisable and the transfer books of the Company were open, such holder would have owned upon such exercise and would have been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to the number of shares of Common Stock receivable thereuponto, and without payment of shall be made prior to, any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred adjustment required pursuant to in clauses Section 11(a)(ii) hereof.
(ii) In the event that a 10% Ownership Date shall have occurred and neither the Redemption Date nor the Expiration Date shall have occurred prior to the tenth Business Day following such 10% Ownership Date (iiia "Section 11(a)(ii) aboveEvent"), then, and upon each such Section 11(a)(ii) which such Holder would hold on the date of such exercise had he been the Event, proper provision shall be made so that, except as provided in Section 7(d) hereof, each holder of record a Right shall thereafter have the right to receive, upon the exercise thereof in accordance with the terms of such Common Stock as this Agreement and payment of the date on which holders then current Exercise Price, such number of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property.Shares of the Company as shall equal the result obtained by (A) multiplying the then current Exercise
Appears in 1 contract
Adjustment of Exercise Price. NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS. The Exercise Price, the number and kind of shares which may be purchased upon exercise of a Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ai) In the event the Company shall at any time after the date of changes this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Preferred Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges into a smaller number of shares, separationsor (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation, reorganizationsmerger or share exchange in which the Company is the continuing or surviving corporation), liquidationsexcept as otherwise provided in this Section 11(a), or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be correspondingly adjusted to give in effect at the Holder time of the Warrantrecord date for such dividend or of the effective date of such subdivision, on exercise for combination or reclassification, and the same aggregate Exercise Price, the total number, class, number and kind of shares as issuable on such date, shall be proportionately adjusted so that the Holder would have owned had the Warrant been exercised prior to the event and had the Holder continued to hold such shares until after the event requiring adjustment. The form of this Warrant need not be changed because holder of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any Right exercised after such time or from time to time the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution (other than a dividend or distribution covered in section 5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 5(a) above), then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled to receive, upon payment of the Exercise Price then in addition to effect, the aggregate number and kind of shares of Common capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock receivable thereupon, and without payment transfer books of any additional consideration thereforthe Company were open, the amount of stock and other securities and property (including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder holder would hold on the date of have owned upon such exercise had he and would have been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive by virtue of such shares dividend, subdivision, combination or all other additional stock reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and other securities and property.Section 11(a)(ii) hereof, the adjustment provided
Appears in 1 contract
Samples: Rights Agreement (Advocat Inc)
