Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Stock of the Company payable in shares of Common Stock of the Company, (B) subdivide or split the outstanding shares of the Common Stock of the Company, (C) combine or consolidate the outstanding shares of Common Stock of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Stock of the Company (or other securities, as the case may be) issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, and at a time when the transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification. If an event occurs which 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 any Person shall, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) 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 (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company 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 (y) dividing that product (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as the “Adjustment Shares”). (iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company 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 subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board, shall: (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 Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in
Appears in 2 contracts
Samples: Rights Agreement (Mci Inc), Rights Agreement (Mci Inc)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, securities purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement Plan (A) declare a dividend on the outstanding shares of Common Stock of the Company Series A Preferred or Series B Preferred, payable in shares of Common Stock of the CompanySeries A Preferred or Series B Preferred, respectively, (B) subdivide or split the outstanding shares of the Common Stock of the CompanySeries A Preferred or Series B Preferred, (C) combine or consolidate the outstanding shares of Common Stock of the Company Series A Preferred or Series B Preferred into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company Series A Preferred or Series B Preferred (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 for herein, including this Section 11(a) and Section 7(e) hereof), the Purchase Price for the Series A Preferred and/or Series B Preferred, as applicable, in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation combination or reclassification, and the number and kind of shares of Common the applicable series of Preferred Stock of the Company (or other securitiescapital stock, as the case may be) , issuable on such datedate upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Purchase Price then in effect, the aggregate number and kind of shares of Common the applicable series of Preferred Stock or other capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were still open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation combination or reclassification. If an event occurs which 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 any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, then, immediately upon the occurrence of such event (a “Section 11(a)(ii) Event”) that any Person shall, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event), each holder of a Right (except as otherwise provided below and in herein, including Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof of such Right at the then then-current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this AgreementPlan, in lieu of the number of Units of Series A Preferred or Series B Preferred 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), such number of shares Units of Common Stock of the Company Series A Preferred or Series B Preferred, as applicable, as shall equal the result obtained by by:
(xA) multiplying the then then-current Purchase Price by the then number of shares Units of Common Stock of the Company Series A Preferred or Series B Preferred, as applicable, 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 (y) dividing that such product (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and being, for all purposes of this AgreementPlan, the “Purchase Price”), and
(B) dividing that product by 50% of the Current Market Price current market price (determined pursuant to Section 11(d) hereof) per share Unit of Common Stock of the Company Series A Preferred or Series B Preferred, as applicable, on the date of such first occurrence (such number Units of shares Series A Preferred or Series B Preferred, as applicable, being referred to as the “Adjustment Shares”); provided, however, that the Purchase Price and the number of Units of Series A Preferred or Series B Preferred, as applicable, so receivable upon exercise of a Right shall, following the Section 11(a)(ii) Event, be subject to further adjustment as appropriate in accordance with this Section 11.
(iii) In lieu of issuing shares of Common Stock The Company, by the vote of the Company in accordance with Section 11(a)(ii) hereofBoard of Directors, may at its option substitute for a Unit of Series A Preferred or Series B Preferred, as applicable, issuable upon the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company 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 subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board, shall: (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 Purchase 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 shares of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, class of the Company other than Common Stock of the Company or fractions thereof having a current market price (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4determined by Section 11(d) debt securities of the Company, (5hereof) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice current market price of a nationally recognized investment banking firm selected by the Board; providedUnit of Series A Preferred or Series B Preferred, howeveras applicable, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) on the date on which the Company’s right of redemption pursuant to Section 23(a) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in
Appears in 2 contracts
Samples: Tax Benefits Preservation Plan, Tax Benefits Preservation Plan (ICO Global Communications (Holdings) LTD)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(ia) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) 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 (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company 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 (y) dividing that product (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company 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 subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board, shall: (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 Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in
Appears in 2 contracts
Samples: Tax Benefit Preservation Plan (Fitlife Brands, Inc.), Tax Benefit Preservation Plan (Enterprise Diversified, Inc.)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise 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.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, through a reverse stock split or otherwise, or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) , issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the Preferred Stock transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification. If an event occurs which 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 Subject to Section 24 hereof, in the event (a “Section 11(a)(ii) Event”) that any Person shall, at any time after the date hereofRights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof then promptly following the occurrence of such event (a “Section 11(a)(ii) Event”), proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one-one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one-one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (y) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as shares, the “"Adjustment Shares”").
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company which are is authorized by the Company’s certificate 's Amended and Restated Certificate of incorporation Incorporation, as it may be amended from time to time, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights 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, shall: Company shall (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 Purchase 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 the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “"Common Stock Equivalents”")), (4) debt securities of the Company, (5) other assets assets, or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current ValueValue (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within 30 thirty (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 's right of redemption pursuant to Section 23(a) hereof, as expires (such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company could be authorized for issuance upon exercise in full of the Rights, the thirty (30-) day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, being referred to is herein as called the “"Substitution Period”"). To the extent that the Company determines that some action need should be taken pursuant to the first or second and/or third sentences of this Section 11(a)(iii), the Company (x1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights Rights, and (y2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares or 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common shares of Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common shares of Preferred Stock (or shares having the same rights, privileges and preferences as the shares of the Company Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesbinding on the Rights Agent and the holders of the Rights. Shares of Common Preferred Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common shares of Preferred Stock of the Company (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 quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase 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 share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock splitsplit or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Day or ten (10) Trading Day period, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 shares of Common Stock 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 the shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock 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 Automated Quotations System ("NASDAQ") or such other system then in use, or, if on any such date the shares of Common Stock 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 Stock selected by the Board. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date as determined in good faith by the Board shall be used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Stock is not publicly held or not so listed or traded, the Current Market Price per share shall mean the fair value per share as determined in good faith by the Board, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
Appears in 2 contracts
Samples: Rights Agreement (Jakks Pacific Inc), Rights Agreement (Jakks Pacific Inc)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event that the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) of the Company were open, such holder he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification. If an event occurs which 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 any Person Person, alone or together with its Affiliates and Associates, shall, at any time after the date hereofRights Dividend Declaration Date, become an Acquiring Person, then unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then, promptly after the date of the occurrence of such Section 11(a)(ii) Event, proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of the number of Units for which such Right was theretofore exercisable (whether or not such Right was then exercisable), such number of shares of Common Stock of the Company or, in the discretion of the Board, such number of Units, as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company Units 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 (y) dividing that product (which following such first occurrence occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares or Units being referred to as the “"Adjustment Shares”").
(iii) In lieu of issuing any shares of Common Stock of the Company or Units in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company or Preferred Stock which are authorized by the Company’s certificate 's articles of incorporation 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 resolution of the Board, shall: (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 Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) equity securities, if any, securities of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, of preferred stock which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “"Common Stock Equivalents”")), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, foregoing which, when added to any shares of Common Stock of the Company or Units issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; providedPROVIDED, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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 's right of redemption pursuant to Section 23(a) hereof, as such date may be extended delayed pursuant to Section 23(a) hereof or otherwise amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, Units (to the extent available) and then, if necessary, cash, which shares shares, Units and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company or 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 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder 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 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 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 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(a)(iiiSection
(a) (iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, Date and the value of any Common Stock Equivalent shall be deemed to be equal to have the same value of as the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges and preferences as the shares of the Company Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents and (iii) the number of shares of Common Preferred Stock of the Company which the aggregate subscription price of the total number of shares of Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents and (iii) the number of additional shares of Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Preferred Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Preferred Stock of the Company (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 regular, periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Preferred Stock of the Company and the denominator of which shall be such Current Market Mar- ket Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"Current Market Price” " per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; providedPROVIDED, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, split or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 shares of Common Stock are not listed or admitted to trading
Appears in 2 contracts
Samples: Rights Agreement (Project Software & Development Inc), Rights Agreement (Project Software & Development Inc)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after that, upon expiration of the date of occurrence of an Redemption Period and subject to Section 11(a)(ii) Event23 hereof, each registered holder of a Right (except as provided below in Section 11(a)(iii) and in Section Sections 7(e) ), 13 and 24 hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a Preferred Share, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock of the Company a Preferred Share 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the Current Market Price per share of Common Stock of the Company Share on the date of such first occurrence (such number of shares being referred to as shares, the “Adjustment Shares”).
(iii) In lieu of issuing shares the event that (A) the number of Common Stock Shares authorized by the Articles of the Company in accordance with Section 11(a)(ii) hereof, Incorporation of the Company, acting by resolution of the Boarddated , maySeptember 25, and in the event that the number of shares of Common Stock of the Company which are authorized by the Company’s certificate 2015 as amended from time-to time (such articles of incorporation being referred to herein as “the Articles of Incorporation”), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights Rights, is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) Common Shares or other equity securities, if any, of the Company other than Common Stock securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Shares, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company Shares (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (30) calendar days following the later of (xI) the first occurrence of a Section 11(a)(ii) Event and (yII) the date on which the Company’s right of redemption pursuant to Section 23(a) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (xI) and (yII) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30-) calendar day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) calendar days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such thirty (30) calendar day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value of the Current Market Price per Common Stock of the Company Share on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock of Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred Shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares at a price per share of Common Stock of the Company Preferred Share or per share of Common Stock Equivalents Equivalent Preferred Share (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock EquivalentsEquivalent Preferred Shares) less than the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents Preferred Shares outstanding on such record date, (ii) plus the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which Preferred Shares that the aggregate subscription offering price of the total number of shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holders of the Company Rights. 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 adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Stock of the Company Preferred 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 (other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Shares, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, less the fair market value (as determined in good faith by the Board, which 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 or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Share, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock Share is determined during a period following the announcement by the issuer of such Common Stock Share of (A) a dividend or distribution on such Common Stock Shares payable in shares of such Common Stock Shares or securities convertible into shares of such Common Stock Shares (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common StockShares, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock splitsplit or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Day or ten (10) Trading Day period, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price Closing Price for each day shall be the last sale price, regular way, or, inin 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 Nasdaq or, if the Common Shares are not listed or admitted to trading on the Nasdaq, as reported in the principal consolidated transaction reporting system with respect to 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 on a quotation system then in use, or, if on any such date the Common Shares are not so quoted, 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. If on any such date the Common Shares are not publicly held and are not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Shares, the “Current Market Price” per Common Share shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holders of the Rights.
Appears in 2 contracts
Samples: Rights Agreement (Inmune Bio, Inc.), Rights Agreement (Inmune Bio, Inc.)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Stock Shares of the Company payable in shares of Common Stock Shares of the Company, (B) subdivide or split the outstanding shares of the Common Stock Shares of the Company, (C) combine or consolidate the outstanding shares of Common Stock Shares of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Stock Shares of the Company (or other securitiescapital stock, as the case may be) issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares Common Shares of Common Stock the Company (or capital stockother securities, as the case may be, ) which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the transfer books for the Common Stock Shares of the Company (or other capital stock, as the case may be) of the Company were open, such holder owner would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification. If an event occurs which 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 any Person shall, at any time after the date hereofRights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (x) a Section 13 Event or (y) an acquisition of Common Shares of the Company pursuant to a tender offer or an exchange offer for all outstanding Common Shares of the Company at a price and on terms determined by at least a majority of the Outside Trustees, after receiving advice from one or more investment banking firms, to be (a) at a price which is fair to shareholders and not inadequate (taking into account all factors which such Outside Trustees deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of the Company and its shareholders (a “Qualified Offer”), then promptly after the date of occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares of the Company for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event (Event, whether or not such Right was then exercisable) , and (y) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock Share of the Company on the date of such first occurrence (such number of shares being referred to as the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock Shares of the Company which are authorized by the Company’s certificate Amended and Restated Declaration of incorporation Trust, as amended (as the same may be amended and restated from time to time), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights 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 BoardBoard (which resolution shall be effective only with the concurrence of a majority of the Continuing Trustees), shall: shall (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) and the amount by which it exceeds the Purchase 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 the exercise of the Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, securities of the Company other than Common Stock Shares of the Company (including without limitation shares, preferred shares or units of shares, preferred shares which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock Shares of the Company (such shares equity securities being referred to herein as “Common Stock Shares Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, foregoing which, when added to any shares of Common Stock Shares of the Company issued upon such exercise, has have an aggregate value equal to the Current ValueValue (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board (with the concurrence of a majority of the Continuing Trustees) based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within 30 thirty (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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock Shares of the Company (to the extent available) and then, if necessary, cash, which shares and and/or cash have an aggregate value equal to the Spread. If the Board (with the concurrence of a majority of the Continuing Trustees) shall determine in good faith that it is likely that sufficient additional shares of Common Stock Shares of the Company could be authorized for issuance upon exercise in full of the Rights, the thirty (30-) day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval approval, if required, for the authorization of such additional shares (such period, as it may be extended, extended being referred to herein as the “Substitution Period”). To the extent that the Company determines that some action need should be taken pursuant to the first or 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 or 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock Share of the Company on the Section 11(a)(ii) Trigger Date, Date and the value of any Common Stock Equivalent Shares Equivalents shall be deemed to be equal to the value of the Common Stock Shares of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock Shares of the Company entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock Shares of the Company or securities convertible into Common Stock Shares of the Company or Common Stock Shares Equivalents at a price per share of Common Stock of the Company Share or per share of Common Stock Equivalents Shares Equivalent (or having a conversion price per share, if a security convertible into Common Stock of the Company Shares or Common Stock Shares Equivalents) less than the Current Market Price per share of Common Stock Share of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock Shares of the Company or Common Stock Equivalents outstanding on such record date, (ii) plus the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock Shares of the Company which the aggregate subscription or offering price of the total number of shares of Common Stock Shares of the Company or and/or Common Stock Shares Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Stock Shares of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Stock Shares of the Company or and/or Common Stock Shares Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the BoardBoard (with the concurrence of a majority of the Continuing Trustees), which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Common Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock Shares of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock Shares of the Company, but including any dividend payable in stock shares other than Common Stock Shares of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock Share of the Company on such record date, less the fair market value (as determined in good faith by the BoardBoard (with the concurrence of a majority of the Continuing Trustees), which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock Shares of the Company and the denominator of which shall be such Current Market Price per share of Common Stock Share of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” Price per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock Share is determined during a period following the announcement by the issuer of such Common Stock Share of (A) a dividend or distribution on such Common Stock Share payable in shares of such Common Stock Shares or securities convertible into shares of such Common Stock Shares (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common StockShares, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock splitsplit or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Days or ten (10) Trading Day period, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case 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 Common Shares 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 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 average of the high bid and low asked prices or, inif not so quoted, the last sale price in the over-the-counter market, as reported by the OTC Bulletin Board operated by the National Association of Securities Dealers, Inc. or the Pink Sheets LLC or such other system then in use. If the Common Shares are not publicly held or not so listed, traded, quoted or reported, Current Market Price per Common Share shall mean the fair value per share as determined in good faith by the Board (with the concurrence of a majority of the Continuing Trustees), whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on which 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 Shares are not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Samples: Renewed Rights Agreement (Hospitality Properties Trust)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30-Trading Day or 10-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 NASDAQ Global Market or, if the Common Stock is not listed or admitted to trading on The NASDAQ Global Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which 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 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 on a quotation system then in use, or, if on any such date the Common Stock is not so quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board. If on any such date the Common Stock is not publicly held and is not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Stock, the “Current Market Price” per share of Common Stock shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise 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.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Stock of the Company payable in shares of Common Stock of the CompanyStock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyStock, (C) combine or consolidate the outstanding shares of Common Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation combination or reclassification, and the number and kind of shares of Common Stock of the Company (or other securities, as the case may be) issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that if a holder of Rights after such time were to exercise that number of Rights (or fraction thereof) which would result in the aggregate amount of the Purchase Price payable upon such exercise (at the Purchase Price then in effect) being equal to the amount of the Purchase Price payable prior to such time upon exercise of a Right, he would be entitled to receive the aggregate number and kind of shares of Common Stock or other capital stock, as the case may be, which, if such a Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, time and at a time when the transfer books for the Common Stock (or other capital stock, as the case may be) transfer books of the Company were open, such holder he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation combination or reclassification. If an event occurs which 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 event:
(A) any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be the continuing or surviving corporation of such merger or combination and the Common Stock of the Company shall remain outstanding and unchanged, (2) shall merge or otherwise combine with any Subsidiary of the Company, (3) shall, in one transaction or a “series of transactions, transfer any assets to the Company or to any of its Subsidiaries in exchange (in whole or in part) for shares of Common Stock, for shares of other equity securities of the Company or any Subsidiary of the Company, or for securities exercisable for or convertible into shares of equity securities of the Company or any Subsidiary of the Company (Common Stock or otherwise) or otherwise obtain from the Company, with or without consideration, any additional shares of equity securities of the Company or securities exercisable for or convertible into shares of such equity securities of the Company (other than pursuant to a pro rata distribution to all holders of Common Stock or upon the exercise of a convertible security of the Company or any Subsidiary of the Company in accordance with its terms), (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of, in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, assets on terms and conditions less favorable to the Company than the Company would be able to obtain at arm's length negotiation with an unaffiliated third party, other than pursuant to a transaction set forth in Section 11(a)(ii13(a) Event”hereof, (5) that shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate) assets having an aggregate fair market value of more than $4,000,000 other than pursuant to a transaction set forth in Section 13(a) hereof, (6) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (7) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries, or
(B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with any Affiliates and Associates of such Person, shall, at any time after the date Rights Dividend Declaration Date, become the Beneficial Owner of 30% or more of the shares of Common Stock then outstanding, unless the event causing the 30% threshold to be crossed is a transaction set forth in Section 13(a) hereof, become or is an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by a majority of the Independent Directors, after receiving advice from one or more investment banking firms, to be (a) at a price that is fair to stockholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interest of the Company and its stockholders, or
(C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries (whether or not with or into or otherwise involving an Acquiring Person), other than a transaction or transactions to which the provisions of Section 13(a) hereof apply (whether or not with or into or otherwise involving an Acquiring Person), which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries which is directly or indirectly beneficially owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, or
(D) the Continuing Directors shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, has, at any time after the Rights Dividend Declaration Date, become the Beneficial Owner of an amount of Common Stock which the Continuing Directors determine to be substantial (which amount shall in no event be less than 15% of the shares of Common Stock then outstanding) and a majority of the Continuing Directors determines, after reasonable inquiry and investigation, which may include a review of the public record regarding such Person and any information such directors may request from such Person and consultation with such persons as such directors shall deem appropriate, that (1) such Beneficial Ownership by such Person is intended to cause the Company to repurchase the Common Stock beneficially owned by such Person or to cause pressure on the Company to take action or enter into a transaction or series of transactions intended to provide such Person with short-term financial gain under circumstances where such directors determine that the best long-term interests of the Company and its stockholders (taking into account any impact on the national security of the United States or the impact on any constituency which Massachusetts law permits directors to consider in discharging their fiduciary duty) would not be served by taking such action or entering into such transactions or series of transactions at that time or (2) 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, then, immediately upon the occurrence of any event described in Section 11(a)(ii)(A) or (C) hereof, and upon the Close of Business ten (10) days after the occurrence of any event described in Section 11(a)(ii)(B) or (D) hereof, proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) 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 (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company for which a Right was or would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event (Event, whether or not such Right was then exercisable) exercisable and (y) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to herein as the “"Adjustment Shares”").
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 7(c) or Section 11(a)(ii) hereof, if the Board of Directors of the Company, with the consent of a majority of the Continuing Directors, determines that the action described below in this Section 11(a)(iii) is necessary or appropriate and not contrary to the interests of the holders of Rights (other than any Acquiring Person, any Adverse Person and any Affiliates or Associates of any such Person), the Company may: (A) determine (x) in the case of an exercise of a Right prior to any adjustment pursuant to Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares Current Market Price per share of Common Stock on the date of the Company which are authorized by the Company’s certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of that Right, or (y) in the Rights is not sufficient case of an exercise of a Right following any adjustment pursuant 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, shall: (A) determine the excess of (111(a)(ii) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”result of (x) over or (2) y), as the Purchase Price attributable to each Right (such excess case may be, being referred to herein as the “Spread”) "Current Value"), 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 Sharessubstitute, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “"Common Stock Equivalents”")), (4) debt securities of the Company, (5) other assets assets, or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, as adjusted (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inthe
Appears in 1 contract
Samples: Rights Agreement (Teradyne Inc)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect effect at the time of the record date for such dividend or of the effective effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effecteffect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Flip-In Event”) that any Person shall), at any time after then, promptly following the date hereofoccurrence of such Flip-In Event, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one ten-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one ten-thousandths of Common a share of Preferred Stock of the Company 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) Flip-In Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the ““ Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Flip-In Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine in good faith determines that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the Section 11(a)(ii) Trigger Datefirst occurrence of a Flip-In Event, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares such thirty (such 30)-day period, as it may be extended, being referred to is herein as called the ““ Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effecteffect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the Section 11(a)(ii) Trigger Date, first occurrence of a Flip-In Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal the Current Market Price per share of Common Stock on such date. In addition, if following the issuance of Common Stock upon exercise of a Preferred Right and payment of the Purchase Price, the holder of such Preferred Right would beneficially own in excess of the Maximum Percentage (as defined in the Certificate of Incorporation), if any, applicable to the Company Preferred Share with respect to which such Preferred Right was issued OR if the Board, in good faith, determines that the issuance of Common Stock upon exercise of a Preferred Right and payment of the Purchase Price would result in any negative consequences to the Company, whether arising pursuant to any listing requirement, law, rule or regulation applicable to the Company and the shares of Common Stock, then the Board shall, in lieu thereof, issue Common Stock Equivalents (that do not possess any voting rights other than as required by law) having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Common Stock of the Company on such dateBoard.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect effect after such record date shall be determined by multiplying the Purchase Price in effect effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered offered (or and/or the aggregate initial conversion price of the convertible securities so to be offeredoffered) would purchase at such Current Market Price, and the denominator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents to be offered offered for subscription or purchase (or into which the convertible securities so to be offered offered are initially convertible). In case such subscription price may be paid by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect effect after such record date shall be determined by multiplying the Purchase Price in effect effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite thirty (30)-Trading Day or ten (10)-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Nasdaq or, if the Common Stock is not listed or admitted to trading on the Nasdaq, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which 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 last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market,
Appears in 1 contract
Samples: Rights Agreement
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect effect at the time of the record date for such dividend or of the effective effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effecteffect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after that, upon expiration of the date of occurrence of an Redemption Period and subject to Section 11(a)(ii) Event23 hereof, each registered holder of a Right (except as provided below in Section 11(a)(iii) and in Section Sections 7(e) ), 13 and 24 hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one ten-thousandths of a Preferred Share, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one ten-thousandths of Common Stock of the Company a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii11(a) Event (whether or not such Right was then exercisableii) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the Current Market Price per share of Common Stock of the Company Share on the date of such first occurrence (such number of shares being referred to as shares, the “Adjustment Shares”); provided, however, that in connection with any exercise effected pursuant to this Section 11(a)(ii), no holder of Rights (other than an Excluded Person or an Exempt Person) shall be entitled to receive Common Shares (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 ten percent (10%) (or, in the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Shares) of the then-outstanding Common Shares. The Rights Agent does not have the information necessary to make such a determination and the Company must provide written notice to the Rights Agent if any limitation on the issuance or transfer of Common Shares exists under this Section. Absent such notification by the Company, the Rights Agent may conclusively presume that there is no such limitation on the issuance or transfer of Common Shares under this Section.
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are Shares authorized by the Company’s certificate Restated Articles of incorporation Incorporation, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights Rights, is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the ““ Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) Common Shares or other equity securities, if any, of the Company other than Common Stock securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Shares, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company Shares (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (30) calendar days following the later of (xI) the first occurrence of a Section 11(a)(ii) Event and (yII) the date on which the Company’s right of redemption pursuant to Section 23(a) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (xI) and (yII) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30-) calendar day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) calendar days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such thirty (30) calendar day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effecteffect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value of the Current Market Price per Common Stock of the Company Share on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock of Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred Shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares at a price per share of Common Stock of the Company Preferred Share or per share of Common Stock Equivalents Equivalent Preferred Share (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock EquivalentsEquivalent Preferred Shares) less than the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents Preferred Shares outstanding on such record date, (ii) plus the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which Preferred Shares that the aggregate subscription offering price of the total number of shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares so to be offered offered (or the aggregate initial conversion price of the convertible securities so to be offeredoffered) would purchase at such Current Market Price, and the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares to be offered offered for subscription or purchase (or into which the convertible securities so to be offered offered are initially convertible). In case such subscription price may be paid by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holders of the Company Rights. 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 adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Stock of the Company Preferred 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 (other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Shares, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect effect after such record date shall be determined by multiplying the Purchase Price in effect effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, less the fair market value (as determined in good faith by the Board, which 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 or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Share, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock Share is determined during a period following the announcement by the issuer of such Common Stock Share of (A) a dividend or distribution on such Common Stock Shares payable in shares of such Common Stock Shares or securities convertible into shares of such Common Stock Shares (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common StockShares, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock splitsplit or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Day or ten (10) Trading Day period, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price Closing Price for each day shall be the last sale price, regular way, or, inin 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 Nasdaq or, if the Common Shares are not listed or admitted to trading on the Nasdaq, as reported in the principal consolidated transaction reporting system with respect to 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 on a quotation system then in use, or, if on any such date the Common Shares are not so quoted, 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. If on any such date the Common Shares are not publicly held and are not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Shares, the “Current Market Price” per Common Share shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holders of the Rights.
Appears in 1 contract
Samples: Rights Agreement
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable shares covered by and obtainable upon exercise of each Right Right, and the number of Rights outstanding outstanding, are subject to adjustment from time to time as provided in this Section 1111 and Section 13 hereof.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company Preferred Shares (including including, but not limited to, 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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Stock of the Company (or other securities, as the case may be) 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, upon payment of the Purchase Price then in effect, receive the aggregate number and kind of shares of Common Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which 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.
(iii) In Subject to Section 24 hereof and to the immediately succeeding paragraph, in the event (a “Section 11(a)(ii) Event”) that any Person shall, at any time after the date hereof, shall become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each holder of a valid Right (except as provided below and in Section 7(e) hereof) shall thereafter have the a right to receive, upon exercise thereof at a price per share equal to the then then-current Purchase Price (but in no event less than multiplied by the par value per share) number of one ten-thousandths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company Company, as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of shares one ten-thousandths of Common Stock of the Company a Preferred Share for which a Right was exercisable immediately prior is then exercisable, and dividing that product by (y) 50% of the then-current per share market price of the Company’s Common Shares (determined pursuant to Section 11(d) hereof) on the first date of the occurrence of the event described above. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action that would eliminate or diminish the benefits intended to be afforded by the Rights. From and after the time when a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event Event”) any Rights that are or were acquired or beneficially owned by (i) any Acquiring Person or any Associate or Affiliate of such Acquiring Person, (ii) a direct or indirect transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person became an Acquiring Person, or (iii) a direct or indirect transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming an Acquiring Person and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Right was then exercisableAcquiring Person or to any Person with whom such Acquiring Person has any continuing agreement, arrangement or understanding, whether written or oral, regarding the transferred Rights or (B) a transfer which the Board of Directors has determined in good faith is part of a plan, arrangement or understanding, whether written or oral, which has as a primary purpose or effect the avoidance of this second paragraph of this Section 11(a)(ii), shall each be null and (y) dividing that product (which following void and any holder of such first occurrence Rights shall thereafter be referred have no exercise or any other rights whatsoever with respect to as the “Purchase Price” for each Right and for all purposes such Rights under any provision of this AgreementAgreement or otherwise. No Rights Certificate shall be issued pursuant to Section 3, this Section 11(a)(ii) or Section 24 that represents Rights beneficially owned by 50% an Acquiring Person or any Associate or Affiliate thereof whose Rights would be null and void pursuant to the preceding sentence; no Rights Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person or any Associate or Affiliate thereof whose Rights would be null and void pursuant to the preceding sentence or to any nominee of such Acquiring Person, Associate or Affiliate; and any Rights Certificate delivered to the Rights Agent for transfer to an Acquiring Person, Associate or Affiliate thereof whose Rights would be null and void pursuant to the preceding sentence shall be cancelled. The Rights Agent shall not be deemed to have any knowledge of the Current Market Price per share identity of Common Stock any such Acquiring Person, Associate or Affiliate, or the nominee of any of the Company on foregoing, unless and until it shall have received written notice of the date identity of such first occurrence (Person from the Company and the Rights Agent may rely on such number of shares being referred to as the “Adjustment Shares”)notice in carrying out its duties under this Agreement.
(iiiii) In lieu of issuing shares of Common Stock Shares of the Company in accordance with Section 11(a)(ii) hereof, the CompanyCompany may, acting by resolution in the sole discretion of the BoardBoard of Directors, mayelect to (and, and in the event that the number Board of shares of Common Stock of Directors has not exercised the Company which exchange right contained in Section 24 hereof and there are authorized by the Company’s certificate of incorporation not sufficient issued but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient and authorized but unissued Common Shares to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof, the foregoing subparagraph Company shall) take all such action as may be necessary to authorize, issue or pay, upon the exercise of the Rights, cash (ii) including by way of this Section 11(aa reduction of the Purchase Price), the Companyproperty, acting by resolution of the Board, shall: (A) determine the excess of (1) other securities or any combination thereof having an aggregate value equal to the value of the Adjustment Common Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock that otherwise would have been issuable pursuant to Section 11(a)(ii), which aggregate value shall be determined by the Board of Directors. For purposes of the Company (including without limitation sharespreceding sentence, or units the value of shares, the Common Shares shall be determined by multiplying the number of Common Shares issuable by the current per share market price of such Common Shares pursuant to Section 11(d) hereof and the value of any equity securities which the Board has of Directors determines to be a “common stock equivalent” (including the Preferred Shares, in such ratio as the Board of Directors shall determine) shall be deemed to have the same value as shares of the Common Stock of the Company (Shares. Any such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined election by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have Directors must be made adequate provision to deliver value pursuant to clause (B) above and publicly announced within 30 60 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “event described in Section 11(a)(ii) Trigger Date”shall have occurred (with prompt written notice thereof to the Rights Agent), then . Following the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment occurrence of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine event described in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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) Board of Directors may suspend the exercisability of the Rights until for a period of up to 60 days following the expiration date on which the event described in Section 11(a)(ii) shall have occurred to the extent that the Board of Directors has not determined whether to exercise the Substitution Period in order to seek any authorization Company’s right of additional shares or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereofelection under this Section 11(a)(iii). In the event of any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) 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 value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such datesuspended.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of to subscribe for or purchase Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents equivalent preferred shares at a price per Preferred Share or equivalent preferred share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalentsequivalent preferred shares) less than the Current Market Price then-current per share of Common Stock market price of the Company Preferred Shares (as defined in Section 11(d)) on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of shares of Common Stock of Preferred Shares which could be purchased at the Company which current per share market price for the aggregate subscription offering price of the total number of Preferred Shares and/or equivalent preferred shares of Common Stock of the Company or Common Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional Preferred Shares and/or equivalent preferred shares of Common Stock of the Company or Common 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 one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid by delivery of in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the BoardBoard of Directors, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent. Preferred Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of Common Stock of the Company Preferred Shares (including including, but not limited to, 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 indebtedness or assets (other than a regular periodic quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price then-current per share of Common Stock market price of the Company Preferred Shares on such record date, less the fair market value (as determined in good faith by the BoardBoard of Directors, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company one Preferred Share and the denominator of which shall be such Current Market Price current per share of Common Stock market price of the CompanyPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one 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 Purchase Price shall again be adjusted to be the Purchase Price which would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant the “current per share market price” of any security (a “Security” for the purpose of this Section 11(d)(i)) on any date shall be deemed to be the average of the daily closing prices (determined as provided in the next sentence) per share of such Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to, but not including, such date, and for the purpose of any computation under Section 11(a)(iii) hereof, the “Current Market Price” current per share market price” of Common Stock a Security on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iiifollowing (but not including) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price current per share market price of the Common Stock Security is determined during a period following the announcement by the issuer of such Common Stock Security of (A) a dividend or distribution on such Common Stock Security payable in shares of such Common Stock Security or securities convertible into such shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split combination or reclassification of such Common Stock, Security and prior to the expiration of the requisite 30-30 Trading Day or 10-Trading Day period, as set forth above, Days after (but not including) the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, combination or reclassification, then, and in each such case, the Current Market Price current per share market price shall be properly appropriately adjusted to take into account ex-dividend tradingreflect the current market price per share equivalent of such Security as if such dividend, distribution, combination or reclassification has not been declared. The closing price for each day shall be the last sale price, regular way, or, inin 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 transaction reporting system with respect to a Security listed or admitted for trading on the New York Stock Exchange, or if such Security is not listed or admitted for trading on the New York Stock Exchange, on the principal national securities exchange on which such security is listed or admitted for trading, or, if such Security is not listed or admitted for trading on any national securities exchange but sales price information is reported for the Security, as reported by such self-regulatory organization or registered securities information processor (as such terms are used under the Exchange Act) that then reports information concerning such Security, or if sales price information is not so reported, the average of the high bid and low asked prices in the over-the-counter market on such day, as reported by such entity, or, if on such day such Security is not quoted by any such entity, 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 such day no market maker is making a market in such Security, the fair value of such Security on such date shall be as determined in good faith by the Board of Directors of the Company. The term “Trading Day” shall mean, with respect to a Security, a day on which the principal national securities exchange on which such Security is listed or admitted for trading is open for the transaction of business, or, if such Security is not listed or admitted for trading on any national securities exchange but is quoted by a self-regulatory organization or registered securities information processor (as such terms are used under the Exchange Act), a day on which such entity reports trades, or, if such Security is not so quoted, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Dolan Media CO)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inof
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after that, upon expiration of the date of occurrence of an Redemption Period and subject to Section 11(a)(ii) Event23 hereof, each registered holder of a Right (except as provided below in Section 11(a)(iii) and in Section Sections 7(e) ), 13 and 24 hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one ten-thousandths of a Preferred Share, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one ten-thousandths of Common Stock of the Company a Preferred Share 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the Current Market Price per share of Common Stock of the Company Share on the date of such first occurrence (such number of shares being referred to as shares, the “Adjustment Shares”); provided, however, that in connection with any exercise effected pursuant to this Section 11(a)(ii), no holder of Rights (other than an Excluded Person or an Exempt Person) shall be entitled to receive Common Shares (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 ten percent (10%) (or, in the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Shares) of the then-outstanding Common Shares. The Rights Agent does not have the information necessary to make such a determination and the Company must provide written notice to the Rights Agent if any limitation on the issuance or transfer of Common Shares exists under this Section. Absent such notification by the Company, the Rights Agent may conclusively presume that there is no such limitation on the issuance or transfer of Common Shares under this Section.
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are Shares authorized by the Company’s certificate Restated Articles of incorporation Incorporation, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights Rights, is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) Common Shares or other equity securities, if any, of the Company other than Common Stock securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Shares, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company Shares (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (30) calendar days following the later of (xI) the first occurrence of a Section 11(a)(ii) Event and (yII) the date on which the Company’s right of redemption pursuant to Section 23(a) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (xI) and (yII) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30-) calendar day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) calendar days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such thirty (30) calendar day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value of the Current Market Price per Common Stock of the Company Share on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock of Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred Shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares at a price per share of Common Stock of the Company Preferred Share or per share of Common Stock Equivalents Equivalent Preferred Share (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock EquivalentsEquivalent Preferred Shares) less than the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents Preferred Shares outstanding on such record date, (ii) plus the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which Preferred Shares that the aggregate subscription offering price of the total number of shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holders of the Company Rights. 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 adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Stock of the Company Preferred 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 (other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Shares, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, less the fair market value (as determined in good faith by the Board, which 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 or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Share, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock Share is determined during a period following the announcement by the issuer of such Common Stock Share of (A) a dividend or distribution on such Common Stock Shares payable in shares of such Common Stock Shares or securities convertible into shares of such Common Stock Shares (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common StockShares, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock splitsplit or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Day or ten (10) Trading Day period, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price Closing Price for each day shall be the last sale price, regular way, or, inin 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 Nasdaq or, if the Common Shares are not listed or admitted to trading on the Nasdaq, as reported in the principal consolidated transaction reporting system with respect to 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 on a quotation system then in use, or, if on any such date the Common Shares are not so quoted, 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. If on any such date the Common Shares are not publicly held and are not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Shares, the “Current Market Price” per Common Share shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holders of the Rights.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of sharesshares covered by each Right, or fractions thereof, purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event Except as otherwise provided in this Section 11(a) and in Section 7(e), if the Company shall at any time after the date of this Agreement (A) declare declares a dividend on the outstanding shares of Common Stock of the Company Shares payable in shares of Common Stock of the CompanyShares, (B) subdivide or split subdivides the outstanding shares of the Common Stock of the CompanyShares, (C) combine or consolidate combines the outstanding shares of Common Stock of the Company Shares into a smaller number of shares shares, or (D) issue issues any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, then the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, as the case may be, and the number and kind of shares of Common Stock of the Company (or other securities, as the case may be) capital stock issuable on such date, shall each will be proportionately adjusted so that the holder of any Right duly exercised after such applicable time shall will be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock or capital stock, as the case may be, whichstock that, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, applicable time and at a time when the Common Shares transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification; provided, however, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which 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 will be in addition to, and shall will be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) In the event (a “Subject to Section 11(a)(ii) Event”) that 25 of this Agreement, if any Person shall, at any time after the date hereof, become becomes an Acquiring PersonPerson then, then and in each such case, proper provision shall will be made promptly so that promptly after that, following the date of occurrence of an Section 11(a)(ii) EventDistribution Date, each holder of a Right (Right, except as provided below and in Section 7(e) hereof) shall thereafter , will have the a right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall is equal to the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company Shares 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) Event, and (y) dividing that product (which following such first occurrence shall will thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the Current Market Price then current per share of Common Stock market price of the Company Company's Common Shares (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to as shares, the “"Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof will apply and no adjustment will be made pursuant to this Section 11(a)(ii). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights.
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company which Shares that are authorized by the Company’s 's certificate of incorporation (as amended and in effect as of the relevant time) but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are 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, shallCompany will: (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 Purchase Price attributable to each Right (such excess being referred to as excess, the “"Spread”) "), and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof)Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) equity securities, if any, Common Shares of the Company same or a different class or other than Common Stock equity securities of the Company (including without limitation shares, preferred shares or units of preferred shares that the Company's Board of Directors in good faith deems (based on, among other things, the dividend and lxxxxxxxxxx rights of such preferred shares) to have substantially the same economic value as Common Shares (such preferred shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being hereinafter referred to herein as “Common Stock Equivalents”"common share equivalents")), (4) debt securities of the Company, (5) other assets assets, or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon of Directors after considering the advice of a nationally recognized competent investment banking firm selected by the BoardBoard of Directors of the Company; provided, however, that if the Company shall has not have made adequate provision to deliver value pursuant to clause (B) above within 30 thirty (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 's right of redemption pursuant to Section 23(a24(b) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall will be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and and/or cash have an aggregate value equal to the Spread. If the Board shall determine of Directors of the Company determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder 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 or and/or second sentences of this Section 11(a)(iii), the Company (x) shall will provide, subject to Section 7(e) hereof, that such action shall will apply uniformly to all outstanding Rights 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 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 any such suspension, the The Company shall issue will make a public announcement stating that when the exercisability of the Rights has been temporarily suspended suspended, and a public announcement at again when such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company shall Shares will be the Current Market Price current market price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the value of any Common Stock Equivalent shall "common share equivalent" will be deemed to be equal to have the same value of as the Common Stock of the Company Shares on such date.
(b) In case If the Company shall fix fixes a record date for the issuance of rights, options options, or warrants to all holders of Common Stock of the Company Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Stock of Shares (or shares having the Company same or more favorable rights, privileges, and preferences as the Common Shares ("equivalent common shares")) or securities convertible into Common Stock of the Company Shares or Common Stock Equivalents equivalent common shares at a price per Common Share or equivalent common share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company Shares or Common Stock Equivalentsequivalent common shares) less than the Current Market Price then current per share of Common Stock market price of the Company Common Shares (as defined in Section 11(d)) on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of shares of Common Stock of the Company which Shares that the aggregate subscription offering price of the total number of Common Shares and/or equivalent common shares of Common Stock of the Company or Common Stock Equivalents so to be offered (or and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price, current market price and the denominator of which shall will be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional Common Shares and/or equivalent common shares of Common Stock of the Company or Common 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 will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid by delivery of in a consideration part or all of which may will be in a form other than cash, the value of such consideration shall will be as determined in good faith by the BoardBoard of Directors of the Company, which whose determination shall will be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent. Common Shares of Common Stock of the Company owned by or held for the account of the Company shall will not be deemed outstanding for the purpose of any such computation. Such adjustment shall will 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 Purchase Price shall will be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case If the Company shall fix fixes a record date for the making of a distribution to all holders of the Common Stock of the Company Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of cash, evidences of indebtedness, cash (or other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the CompanyShares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the Current Market Price then current per share of Common Stock market price of the Company Common Shares on such record date, less the fair market value (as determined in good faith by the BoardBoard of Directors of the Company, which whose determination shall will be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent) of the portion of the cash, assets or evidences of indebtedness indebtedness, or other assets so to be distributed or of such subscription rights or warrants applicable to a share of one Common Stock of the Company Share and the denominator of which shall will be such Current Market Price current per share of Common Stock market price of the CompanyCommon Shares; provided, however, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall will be made successively whenever such a record date is fixed, ; and in the event that such distribution is not so made, the Purchase Price shall will again be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, hereunder other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” "current per share market price" of Common Stock any Security (a "Security" for the purpose of this Section 11(d)(i)) on any date shall will be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price current per share market price of the Common Stock Security is determined during a period following the announcement by the issuer of such Common Stock Security of (A) a dividend or distribution on such Common Stock Security payable in shares of such Common Stock Security or securities convertible into shares of such Common Stock (other than the Rights) shares, or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, Security and prior to the expiration of the requisite 30-30 Trading Day or 10-Trading Day period, as set forth above, Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall current per share market price will be properly appropriately adjusted to take into account ex-dividend tradingreflect the current market price per share equivalent of such Security. The closing price for each day shall will be the last sale price, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case 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 Security is 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 the Security is listed or admitted to trading, or if the Security is 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 National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then in use, or if on any such date the Security is 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 Security selected by the Board of Directors of the Company. The term "Trading Day" means a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, inif the Security is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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.
(iii) In the event any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iiiii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has 15 deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company could be authorized for issuance upon exercise in full of the Rights, the 30-day 30‑day period set forth above may be extended to the extent necessary, but not more than 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30‑day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall promptly notify the Rights Agent in writing whenever it temporarily suspends the exercisability of the Rights or when any such suspension is no longer in effect, and shall promptly give the Rights Agent a copy of any public announcement under the preceding sentence. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inimmediately
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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.
(iii) In the event any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one- thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iiiii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company could be authorized for issuance upon exercise in full of the Rights, the 30-day 30‑day period set forth above may be extended to the extent necessary, but not more than 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30‑day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall promptly notify the Rights Agent in writing whenever it 18 temporarily suspends the exercisability of the Rights or when any such suspension is no longer in effect, and shall give the Rights Agent a copy of any public announcement under the preceding sentence. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30‑Trading Day or 10‑Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Common Stock is 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 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 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 on a quotation system then in use, or, if on any such date the Common Stock is not so quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board. If on any such date the Common Stock is not publicly held and is not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Stock, the “Current Market Price” per share of Common Stock shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30-Trading Day or 10-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Nasdaq Global Select Market or, if the Common Stock is not listed or admitted to trading on the Nasdaq Global Select Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which 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 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 on a quotation system then in use, or, if on any such date the Common Stock is not so quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board. If on any such date the Common Stock is not publicly held and is not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Stock, the “Current Market Price” per share of Common Stock shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Masimo Corp)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii(A) Event, each registered holder of a Class A Right (except except, in each case, as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Class A Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company for which a Class 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) Event, and (y) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Class A Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Class A Common Stock of the Company on the date of such first occurrence (such number of shares being of Class A Common Stock, the “Class A Adjustment Shares”) and (B) each registered holder of a Class B Right (except, in each case, as provided below and in Section 7(e), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Class B Common Stock, as shall equal the result obtained by (i) multiplying the then current Purchase Price by the then number of one one-thousandths of a share of Preferred Stock for which a Class B Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (ii) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Class B Right and for all purposes of this Agreement other than Section 13 hereof) by 50% of the Current Market Price per share of Class B Common Stock on the date of such first occurrence (such number of shares of Class B Common Stock, the “Class B Adjustment Shares,” and together with the Class A Adjustment Shares, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Class A Common Stock of the Company which are or Class B Common Stock authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Class A Adjustment Shares or Class B Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase Price attributable to each Right (such excess being referred to as the “Spread”) and (B) with respect to all each Class A Right or a portion of each Class B Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Class A Adjustment Shares or Class B Adjustment Shares, as applicable, upon the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securitiesto the fullest extent permitted by the Certificate of Incorporation, if any, of the Company other than Common Stock or other equity securities of the Company (including without limitation shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of the Class A Common Stock of the Company (such shares of preferred stock being referred to herein as “Class A Common Stock Equivalents”) or the Class B Common Stock (such shares of preferred stock being referred to as “Class B Common Stock Equivalents”), as applicable), (4x) debt securities of the Company, (5y) other assets assets, or (6z) to the fullest extent permitted by the Certificate of Incorporation, any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected in good faith by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, such number or fractions of a share of Preferred Stock (if available), and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Class A Rights or Class B Rights, as applicable, and (y) the Company may suspend the exercisability of the such Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the applicable Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Class A Adjustment Share shall be the Current Market Price per share of the Class A Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Class A Common Stock Equivalent shall be deemed to be equal to the Current Market Price per share of Class A Common Stock on such date and the value of each Class B Adjustment Share shall be the Current Market Price per share of Class B Common Stock on the date of the Company first occurrence of a Section 11(a)(ii) Event and the per share or per unit value of any Class B Common Stock Equivalent shall be deemed to equal the Current Market Price per share of Class B Common Stock on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, powers and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Class A Common Stock, Class B Common Stock or Common Stock of any Principal Party on any date shall be deemed to be the average of the daily closing prices per share of such the applicable class of Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Class A Common Stock or Class B Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such the applicable class of Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Class A Common Stock, Class B Common Stock or Common Stock of any Principal Party is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30-Trading Day or 10-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 NASDAQ Global Select Market or, if the Class
Appears in 1 contract
Samples: Rights Agreement (Fox Corp)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30-Trading Day or 10-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Common Stock is 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 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 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 on a quotation system then in use, or, if on any such date the Common Stock is not so quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board. If on any such date the Common Stock is not publicly held and is not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Stock, the “Current Market Price” per share of Common Stock shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Fluor Corp)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise 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.
(i) In the event If the Company shall at any time after the date of this Agreement Rights Dividend Declaration Date (A) declare and pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Preferred Stock into a greater number of the Companyshares, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares or effect a reverse split of the outstanding shares of Preferred Stock, or (D) issue issue, change or alter any of its shares of its capital stock in a reclassification of the Common Preferred Stock of the Company (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 or in Section 7(e) hereof, then, and in each such case, the Purchase Price in effect at the time of the record date for such dividend or of the effective date time of such subdivision, split, combination, consolidation combination or reclassification, and the number and kind of shares of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) , issuable on at such datetime, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Preferred Stock or other capital stock, as the case may be, which, if such Right had been exercisable and was exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, then 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 Subject to Sections 23 and 24 of this Agreement, other than a transaction or transactions to which the event provisions of Section 13(a) apply, if:
(A) any Acquiring Person (or any Associate or Affiliate of any Acquiring Person), at any time after the Rights Dividend Declaration Date, directly or indirectly, shall (1) consolidate with or merge with and into the Company or any of its Subsidiaries or otherwise combine with the Company or any of its Subsidiaries, and as a “Section 11(a)(iiresult thereof the Company or such Subsidiary shall be the continuing or surviving corporation of such consolidation, merger or combination and the Common Stock of the Company shall remain outstanding and no shares thereof shall be changed into or exchanged for stock or other securities of the Company or of any other Person or into or for cash or any other property, (2) Event”in one transaction or a series of transactions, other than in connection with the exercise of a Right or Rights, and other than in connection with the exchange, exercise or conversion of securities exchangeable or exercisable for or convertible into securities of the Company or any Subsidiary of the Company, transfer any assets or property to the Company or to any of its Subsidiaries in exchange (in whole or in part) for shares of Common Stock, for shares of other equity securities of the Company or any Subsidiary of the Company, or for securities exchangeable or exercisable for or convertible into shares of equity securities of the Company or any Subsidiary of the Company (Common Stock or otherwise) or otherwise obtain from the Company or any of its Subsidiaries, with or without consideration, any additional shares of such equity securities or securities exchangeable or exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata offer or a distribution by the Company or such Subsidiary to all holders of Common Stock that is made ratably to all holders of Common Stock), (3) sell, purchase, lease, exchange, assign, mortgage, pledge, transfer or otherwise acquire (other than as a pro rata dividend) or dispose of, in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any Person of its Subsidiaries, assets (including securities) on terms and conditions less favorable to Company or such Subsidiary than the Company or such Subsidiary would be able to obtain in an arm’s length negotiation with an unaffiliated third party, (4) receive any compensation or other remuneration or economic benefit from the Company or any of the Company’s Subsidiaries for services other than compensation for employment as a regular full-time or part-time employee, or fees for serving as a director of the Company or any of its Subsidiaries, at reasonable and customary rates in accordance with the Company’s (or its Subsidiaries’) past practices, (5) receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (6) engage in any transaction with the Company or any of its Subsidiaries involving the sale, license, transfer, assignment or grant of any right in, or disclosure of, any patents, copyrights, trade secrets, trademarks, know-how or any other intellectual or industrial property rights recognized under any country’s intellectual property laws which the Company (including its Subsidiaries) owns or has the right to use on terms and conditions not approved by the Board, or
(B) any Person, alone or together with any Affiliates and Associates of such Person, shall, at any time after the date hereofRights Dividend Declaration Date, become an Acquiring Person, then or
(C) during such time as there is an Acquiring Person after the Rights Dividend Declaration Date, there shall be any reclassification of securities (including any reverse stock split), or any recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries (whether or not with or into or otherwise involving an Acquiring Person or any Affiliate or Associate of an Acquiring Person), or any repurchase by the Company or any of its Subsidiaries of shares of Common Stock of the Company or of any other class or series of securities issued by the Company, which reclassification, recapitalization, merger, consolidation or repurchase has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities or securities exchangeable or exercisable for or convertible into any class of equity securities of the Company or any of its Subsidiaries which is directly or indirectly owned by an Acquiring Person or any Associate or Affiliate of an Acquiring Person, then, in each such case, upon the Close of Business on the 10th day next following the date of the occurrence of an event described in Section 11(a)(ii)(B) hereof, and immediately upon the occurrence of any event described in Section 11(a)(ii)(A) or (C) hereof, proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each holder of a Right (except as provided below and as set forth in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) 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 (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company 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 (y) dividing that product (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company 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 subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board, shall: (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 Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in
Appears in 1 contract
Samples: Rights Agreement (Vocus, Inc.)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise 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 that the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, through a reverse stock split or otherwise, or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) , issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the Preferred Stock transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right. If an event occurs which 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.
(iii) In Subject to Section 24 hereof, in the event (a “Section 11(a)(ii) Event”) that any Person shall, at any time after the date hereofRights Dividend Declaration Date, become an Acquiring Person, then unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then, promptly following the later of the occurrence of such event and the Record Date, proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of 1/10,000th of a share of Preferred Stock, such number of shares of Common Stock of the Company (or at the option of the Company, such number of 1/10,000th of a share of Preferred Stock) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares 1/10,000th of Common a share of Preferred Stock of the Company 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) Event, and (y) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as shares, the “Adjustment Shares”).
(iiiii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of treasury shares and shares of Common Stock of the Company which are authorized by the Company’s certificate of incorporation Company Charter, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights 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, shall: Company shall (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 Purchase 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 the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including without limitation shares, or units of shares, of preferred stock, such as the 16 Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets assets, or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current ValueValue (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within 30 days following (but not including) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company could be authorized for issuance upon exercise in full of the Rights, the 30-30 day period set forth above may be extended to the extent necessary, but not more than 90 days after (but not including) the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30 day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need should be taken pursuant to the first or second and/or third sentences of this Section 11(a)(iii), the Company (x1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights Rights, and (y2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares or 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall promptly notify the Rights Agent in writing whenever it makes a public announcement pursuant to this Section 11(a)(iii) and simultaneously provide the Rights Agent a copy of such announcement. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, rights or options or warrants to all holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after after, but not including, such record date) Common Preferred Stock (or shares having the same rights, privileges and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent 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 one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right. In case such subscription price may be paid by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights. Shares of Common Preferred Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Preferred Stock of the Company (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 quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock Preferred Stock; provided that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the Companyshares of capital stock of the Company issuable upon the exercise of one 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to (but not including) such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inpurposes
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right 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 this Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, 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 at the then current Purchase Price (but in no event less than the par value per share) 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 (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company 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 (y) dividing that product (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company 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 subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board, shall: (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 Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in
Appears in 1 contract
Samples: Rights Agreement (Support.com, Inc.)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Flip-In Event”) that any Person shall), at any time after then, promptly following the date hereofoccurrence of such Flip-In Event, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one ten-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one ten-thousandths of Common a share of Preferred Stock of the Company 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) Flip-In Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Flip-In Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine in good faith determines that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the Section 11(a)(ii) Trigger Datefirst occurrence of a Flip-In Event, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares such thirty (such 30)-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the Section 11(a)(ii) Trigger Date, first occurrence of a Flip-In Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal the Current Market Price per share of Common Stock on such date. In addition, if following the issuance of Common Stock upon exercise of a Preferred Right and payment of the Purchase Price, the holder of such Preferred Right would beneficially own in excess of the Maximum Percentage (as defined in the Certificate of Incorporation), if any, applicable to the Company Preferred Share with respect to which such Preferred Right was issued OR if the Board, in good faith, determines that the issuance of Common Stock upon exercise of a Preferred Right and payment of the Purchase Price would result in any negative consequences to the Company, whether arising pursuant to any listing requirement, law, rule or regulation applicable to the Company and the shares of Common Stock, then the Board shall, in lieu thereof, issue Common Stock Equivalents (that do not possess any voting rights other than as required by law) having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Common Stock of the Company on such dateBoard.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite thirty (30)-Trading Day or ten (10)-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Nasdaq or, if the Common Stock is not listed or admitted to trading on the Nasdaq, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which 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 last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market,
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of sharesshares of Preferred Stock or other securities, cash or fractions thereofother assets, purchasable as the case may be, issuable or payable upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock of the Company (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 in Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation combination or reclassification, and the number and kind of shares of Common Preferred Stock of the Company (or other securities, cash or other assets, as the case may be) , issuable or payable on such datedate upon the exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, receive upon payment of the Purchase Price then in effect, effect the aggregate number and kind of shares of Common Preferred Stock or capital stockother securities, cash or other assets, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the Preferred Stock transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereofor Section 13, 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) hereofor Section 13.
(ii) In the event that any Person (other than the Company, any subsidiary of the Company, any employee benefit plan of the Company or any of its subsidiaries or any entity holding securities of the Company organized, appointed or established by the Company or any of its subsidiaries for or pursuant to the terms of any such plan), alone or together with his or its Affiliates and Associates, shall become an Acquiring Person (except pursuant to a tender or exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company to be both adequate and otherwise in the best interests of the Company and its stockholders, other than the interests of the Person or an Affiliate or Associate thereof on whose behalf the offer is being made (a “"Permitted Offer")) (a "Section 11(a)(ii) Event”) that any Person shall, at any time after the date hereof, become an Acquiring Person"), then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each holder of a Right (Right, except as provided below and in Section 7(e) hereof) shall thereafter , shall, for a period of 60 days after the later of the occurrence of any such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) 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 shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock of the Company for which a Right was is then exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event (whether or not such Right was then exercisable) and (y) dividing that product (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price current market price per one share of Common Stock of the Company as determined pursuant to Section 11(d) hereof, on the date of such first the occurrence of the Section 11(a)(ii) Event (such number of shares being referred to as the “number of "Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In lieu of issuing the event that there shall not be sufficient treasury shares or authorized but unissued shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company 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 subparagraph (ii) of this Section 11(a)and, but for the delay necessary to register such shares under the Securities Act, the CompanyRights would become so exercisable, acting by resolution of the Board, shall: Company shall (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the “current market price used to determine the number of Adjustment Shares) (the "Current Value”") over (2) the then current Purchase Price attributable to each Right (such excess being is herein referred to as the “"Spread”) "), and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof)Right, make adequate provision to substitute for so that the Adjustment Sharesholders of the Rights shall receive, upon the exercise of the Rights and payment of the applicable Purchase Price, shares of Common Stock of the Company (up to the maximum number of shares of Common Stock of the Company which may permissibly be issued using the allocation procedure specified in the second sentence of Section 11(k) hereof), and then (after all treasury and authorized but unissued and unreserved shares of Common Stock of the Company have been issued) (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) shares of Preferred Stock or other equity securities, if any, of the Company other than Common Stock securities of the Company (including including, without limitation shareslimitation, shares or units of shares, which preferred stock) that the Board of Directors of the Company has deemed to have the same economic value and, to the extent permitted by the Articles of Incorporation, voting rights, as shares of the Common Stock of the Company (such shares being or units of Preferred Stock or other equity securities are herein referred to herein as “Common Stock Equivalents”)"common stock equivalents"), (4) debt securities of the Company, (5) other assets assets, or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having 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 BoardBoard 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 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 's right of redemption pursuant to Section 23(a24(a)(i) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii11(a)(iii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and and/or cash shall have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient number of additional shares of Common Stock of the Company could be authorized by the shareholders for issuance upon exercise in full of the Rights, the 30-day 30 days period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii11(a)(iii) 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”"). To the extent that the Company determines that some action need be taken pursuant to the first or 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 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 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the shares of Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company current market price (as determined pursuant to Section 11(d)) on the Section 11(a)(ii11(a)(iii) Trigger Date, Date and the value of any Common Stock Equivalent common stock equivalents shall be deemed to be equal to have the same value as the shares of the Common Stock of the Company on such date.
(b) In case If the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common to subscribe for or purchase Preferred Stock of (or shares having the Company same or more favorable rights, privileges and preferences as the Preferred Stock (the "preferred stock equivalent")) or securities convertible into Common Preferred Stock of the Company or Common Stock Equivalents preferred stock equivalent, at a price per share of Common Preferred Stock of the Company or per share of Common Stock Equivalents preferred stock equivalent (or having a conversion price per share, if a security convertible into Common Preferred Stock of the Company or Common Stock Equivalentspreferred stock equivalent) less than the Current Market Price current market price (as defined in Section 11(d)) per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription offering price of the total number of shares of Common Preferred Stock of the Company or Common Stock Equivalents so and/or preferred stock equivalent to be offered (or and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price, current market price and the denominator of which shall be the sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common Stock Equivalents and/or preferred stock equivalent 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 by delivery of in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in reasonably and with good faith to the holders of Rights by the Board, which Board of Directors of the Company whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesbinding on the Rights Agent. Shares of Common Preferred Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case If the Company shall fix a record date for the making of a distribution to all holders of Common Preferred Stock of the Company (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 quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price current market price (as defined in Section 11(d)) per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in reasonably and with good faith to the holders of Rights by the BoardBoard of Directors of the Company, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesbinding on the Rights Agent) of the portion of the cash, assets or (evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a distributable in respect of one share of Common Preferred Stock of the Company and the denominator of which shall be such Current Market Price the current market price per share of Common Stock of the CompanyPreferred Stock. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would have been be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, hereunder other than computations made pursuant to in Section 11(a)(iii) hereof), the “Current Market Price” "current market price" per share of Common Stock of the Company on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock of the Company for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price current per share market price of the Common Stock of the Company is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split combination or reclassification of such Common Stock, and prior to the expiration of the requisite 30-30 Trading Day or 10-Trading Day period, as set forth above, Days after the ex-dividend date for such dividend or distribution, distribution or the record date for such subdivision, combination, consolidation, reverse stock split, combination or reclassification, then, and in each such case, the Current Market Price "current market price" shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way or, in case no such sale takes place on that 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 on the principal national securities exchange on which the shares of Common Stock of the Company are listed or admitted to trading or, inif the shares of Common Stock of the Company 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 Nasdaq Stock Market or such other system then in use or, if on any such date the shares of Common Stock of the Company 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 Stock of the Company selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Stock of the Company, the fair value of such shares on such date as determined reasonably and with good faith by the Board of Directors of the Company shall be used and shall be binding on the Rights Agent. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock of the Company are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock of the Company are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Stock of the Company is not publicly held or not so listed or traded, "current market price" per share shall mean the fair value per share determined reasonably and with good faith to the holders of Rights 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 on the Rights Agent.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall promptly notify the Rights Agent in writing whenever it temporarily suspends the exercisability of the Rights or when any such suspension is no longer in effect, and shall give the Rights Agent a copy of any public announcement under the preceding sentence. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30-Trading Day or 10-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Common Stock is 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 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 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 on a quotation system then in use, or, if on any such date the Common Stock is not so quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board. If on any such date the Common Stock is not publicly held and is not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Stock, the “Current Market Price” per share of Common Stock shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are 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, shall: (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 Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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 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 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of the Company or securities convertible into Common Stock of the Company or Common Stock Equivalents at a price per share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company or Common Stock Equivalents) less than the Current Market Price per share of Common Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which the aggregate subscription price of the total number of shares of Common Stock of the Company or Common Stock Equivalents 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of additional shares of Common Stock of the Company or Common Stock Equivalents 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company. 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 Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in
Appears in 1 contract
Samples: Rights Agreement (Advanced Emissions Solutions, Inc.)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 the exercise of one Right. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine in good faith determines that it is likely that sufficient additional shares of Common Stock of the Company 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 90 days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposespurposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidationor reclassification shall not have occurred prior to the commencement of the requisite 30-Trading Day or 10-Trading Day period, reverse stock split, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Common Stock is 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
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable shares covered by and obtainable upon exercise of each Right Right, and the number of Rights outstanding outstanding, are subject to adjustment from time to time as provided in this Section 1111 and Section 13 hereof.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company Preferred Shares (including including, but not limited to, 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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, and the number and kind of shares of Common Stock of the Company (or other securities, as the case may be) 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, upon payment of the Purchase Price then in effect, receive the aggregate number and kind of shares of Common Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which 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 Subject to Section 24 hereof and to the immediately succeeding paragraph, in the event (a “Section 11(a)(ii) Event”) that any Person shall, at any time after the date hereof, shall become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each holder of a valid Right (except as provided below and in Section 7(e) hereof) shall thereafter have the a right to receive, upon exercise thereof at a price per share equal to the then then-current Purchase Price (but in no event less than multiplied by the par value per share) number of one one-thousandths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of shares one one-thousandths of Common Stock of the Company a Preferred Share for which a Right was exercisable immediately prior is then exercisable, and dividing that product by (y) 50% of the then-current per share market price of the Company’s Common Shares (determined pursuant to Section 11(d) hereof) on the first date of the occurrence of the event described above. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action that would eliminate or diminish the benefits intended to be afforded by the Rights. From and after the time when a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event Event”) any Rights that are or were acquired or Beneficially Owned by (i) any Acquiring Person or any Associate or Affiliate of such Acquiring Person, (ii) a direct or indirect transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person became an Acquiring Person, or (iii) a direct or indirect transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming an Acquiring Person and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Right was then exercisableAcquiring Person or to any Person with whom such Acquiring Person has any continuing agreement, arrangement or understanding, whether written or oral, regarding the transferred Rights or (B) a transfer which the Board of Directors has determined in good faith is part of a plan, arrangement or understanding, whether written or oral, which has as a primary purpose or effect the avoidance of this second paragraph of this Section 11(a)(ii), shall each be null and (y) dividing that product (which following void, and any holder of such first occurrence Rights shall thereafter be referred have no exercise or any other rights whatsoever with respect to as the “Purchase Price” for each Right and for all purposes such Rights under any provision of this AgreementAgreement or otherwise. No Rights Certificate shall be issued pursuant to Section 3, this Section 11(a)(ii) or Section 24 that represents Rights Beneficially Owned by 50% an Acquiring Person or any Associate or Affiliate thereof whose Rights would be null and void pursuant to the preceding sentence; no Rights Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person or any Associate or Affiliate thereof whose Rights would be null and void pursuant to the preceding sentence or to any nominee of such Acquiring Person, Associate or Affiliate; and any Rights Certificate delivered to the Rights Agent for transfer to an Acquiring Person, Associate or Affiliate thereof whose Rights would be null and void pursuant to the preceding sentence shall be cancelled. The Rights Agent shall not be deemed to have any knowledge of the Current Market Price per share identity of Common Stock any such Acquiring Person, Associate or Affiliate, or the nominee of any of the Company on foregoing, unless and until it shall have received written notice of the date identity of such first occurrence (Person from the Company, and the Rights Agent may rely on such number of shares being referred to as the “Adjustment Shares”)notice in carrying out its duties under this Agreement.
(iii) In lieu of issuing shares of Common Stock Shares of the Company in accordance with Section 11(a)(ii) hereof, the CompanyCompany may, acting by resolution in the sole discretion of the BoardBoard of Directors, mayelect to (and, and in the event that the number Board of shares of Common Stock of Directors has not exercised the Company which exchange right contained in Section 24 hereof and there are authorized by the Company’s certificate of incorporation not sufficient issued but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient and authorized but unissued Common Shares to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof, the foregoing subparagraph Company shall) take all such action as may be necessary to authorize, issue or pay, upon the exercise of the Rights, cash (ii) including by way of this Section 11(aa reduction of the Purchase Price), the Companyproperty, acting by resolution of the Board, shall: (A) determine the excess of (1) other securities or any combination thereof having an aggregate value equal to the value of the Adjustment Common Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase 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 Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock that otherwise would have been issuable pursuant to Section 11(a)(ii), which aggregate value shall be determined by the Board of Directors. For purposes of the Company (including without limitation sharespreceding sentence, or units the value of shares, the Common Shares shall be determined by multiplying the number of Common Shares issuable by the current per share market price of such Common Shares pursuant to Section 11(d) hereof and the value of any equity securities which the Board has of Directors determines to be a “common stock equivalent” (including the Preferred Shares, in such ratio as the Board of Directors shall determine) shall be deemed to have the same value as shares of the Common Stock of the Company (Shares. Any such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been determined election by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have Directors must be made adequate provision to deliver value pursuant to clause (B) above and publicly announced within 30 60 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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “event described in Section 11(a)(ii) Trigger Date”shall have occurred (with prompt written notice thereof to the Rights Agent), then . Following the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment occurrence of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine event described in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 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 (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 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) Board of Directors may suspend the exercisability of the Rights until for a period of up to 60 days following the expiration date on which the event described in Section 11(a)(ii) shall have occurred to the extent that the Board of Directors has not determined whether to exercise the Substitution Period in order to seek any authorization Company’s right of additional shares or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereofelection under this Section 11(a)(iii). In the event of any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) 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 value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such datesuspended.
(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Stock of to subscribe for or purchase Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents equivalent preferred shares at a price per Preferred Share or equivalent preferred share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalentsequivalent preferred shares) less than the Current Market Price then-current per share of Common Stock market price of the Company Preferred Shares (as defined in Section 11(d)) on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of shares of Common Stock of Preferred Shares which could be purchased at the Company which current per share market price for the aggregate subscription offering price of the total number of Preferred Shares and/or equivalent preferred shares of Common Stock of the Company or Common Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional Preferred Shares and/or equivalent preferred shares of Common Stock of the Company or Common 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 one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid by delivery of in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the BoardBoard of Directors, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent. Preferred Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall 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 Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of Common Stock of the Company Preferred Shares (including including, but not limited to, 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 indebtedness or assets (other than a regular periodic quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price then-current per share of Common Stock market price of the Company Preferred Shares on such record date, less the fair market value (as determined in good faith by the BoardBoard of Directors, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company one Preferred Share and the denominator of which shall be such Current Market Price current per share of Common Stock market price of the CompanyPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one 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 Purchase Price shall again be adjusted to be the Purchase Price which would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant the “current per share market price” of any security (a “Security” for the purpose of this Section 11(d)(i)) on any date shall be deemed to be the average of the daily closing prices (determined as provided in the next sentence) per share of such Security for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to, but not including, such date, and for the purpose of any computation under Section 11(a)(iii) hereof, the “Current Market Price” current per share market price” of Common Stock a Security on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iiithirty (30) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following (but not including) such date; provided, however, that in the event that the Current Market Price current per share market price of the Common Stock Security is determined during a period following the announcement by the issuer of such Common Stock Security of (A) a dividend or distribution on such Common Stock Security payable in shares of such Common Stock Security or securities convertible into such shares of such Common Stock (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split combination or reclassification of such Common Stock, Security and prior to the expiration of the requisite 30-30 Trading Day or 10-Trading Day period, as set forth above, Days after (but not including) the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, combination or reclassification, then, and in each such case, the Current Market Price current per share market price shall be properly appropriately adjusted to take into account ex-dividend tradingreflect the current market price per share equivalent of such Security as if such dividend, distribution, combination or reclassification had not been declared. The closing price for each day shall be the last sale price, regular way, or, inin 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 transaction reporting system with respect to a Security listed or admitted for trading on the New York Stock Exchange, or if such Security is not listed or admitted for trading on the New York Stock Exchange, on the principal national securities exchange on which such security is listed or admitted for trading, or, if such Security is not listed or admitted for 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 the OTC Bulletin Board, the Pink Sheets 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
Appears in 1 contract
Samples: Rights Agreement (Kensey Nash Corp)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of sharesshares covered by each Right, or fractions thereof, purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event Except as otherwise provided in this Section 11(a) and in Section 7(e), if the Company shall at any time after the date of this Agreement (A) declare declares a dividend on the outstanding shares of Common Stock of the Company Shares payable in shares of Common Stock of the CompanyShares, (B) subdivide or split subdivides the outstanding shares of the Common Stock of the CompanyShares, (C) combine or consolidate combines the outstanding shares of Common Stock of the Company Shares into a smaller number of shares shares, or (D) issue issues any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, then the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation or reclassification, as the case may be, and the number and kind of shares of Common Stock of the Company (or other securities, as the case may be) capital stock issuable on such date, shall each will be proportionately adjusted so that the holder of any Right duly exercised after such applicable time shall will be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock or capital stock, as the case may be, whichstock that, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, applicable time and at a time when the Common Shares transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation or reclassification; provided, however, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which 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 will be in addition to, and shall will be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) In the event (a “Subject to Section 11(a)(ii) Event”) that 25 of this Agreement, if any Person shall, at any time after the date hereof, become becomes an Acquiring PersonPerson then, then and in each such case, proper provision shall will be made promptly so that promptly after that, following the date of occurrence of an Section 11(a)(ii) EventDistribution Date, each holder of a Right (Right, except as provided below and in Section 7(e) hereof) shall thereafter , will have the a right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall is equal to the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company Shares 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) Event, and (y) dividing that product (which following such first occurrence shall will thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the Current Market Price then current per share of Common Stock market price of the Company Company's Common Shares (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to as shares, the “"Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof will apply and no adjustment will be made pursuant to this Section 11(a)(ii). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights.
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company which Shares that are authorized by the Company’s 's certificate of incorporation (as amended and in effect as of the relevant time) but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are 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, shallCompany will: (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 Purchase Price attributable to each Right (such excess being referred to as excess, the “"Spread”) "), and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof)Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3) equity securities, if any, Common Shares of the Company same or a different class or other than Common Stock equity securities of the Company (including without limitation shares, preferred shares or units of preferred shares that the Company's Board of Directors in good xxxxx xxxxx (based on, among other things, the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as Common Shares (such preferred shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being hereinafter referred to herein as “Common Stock Equivalents”"common share equivalents")), (4) debt securities of the Company, (5) other assets assets, or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon of Directors after considering the advice of a nationally recognized competent investment banking firm selected by the BoardBoard of Directors of the Company; provided, however, that if the Company shall has not have made adequate provision to deliver value pursuant to clause (B) above within 30 thirty (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 's right of redemption pursuant to Section 23(a24(b) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall will be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and and/or cash have an aggregate value equal to the Spread. If the Board shall determine of Directors of the Company determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder 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 or and/or second sentences of this Section 11(a)(iii), the Company (x) shall will provide, subject to Section 7(e) hereof, that such action shall will apply uniformly to all outstanding Rights 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 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 any such suspension, the The Company shall issue will make a public announcement stating that when the exercisability of the Rights has been temporarily suspended suspended, and a public announcement at again when such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company shall Shares will be the Current Market Price current market price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the value of any Common Stock Equivalent shall "common share equivalent" will be deemed to be equal to have the same value of as the Common Stock of the Company Shares on such date.
(b) In case If the Company shall fix fixes a record date for the issuance of rights, options options, or warrants to all holders of Common Stock of the Company Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Stock of Shares (or shares having the Company same or more favorable rights, privileges, and preferences as the Common Shares ("equivalent common shares")) or securities convertible into Common Stock of the Company Shares or Common Stock Equivalents equivalent common shares at a price per Common Share or equivalent common share of Common Stock of the Company or per share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company Shares or Common Stock Equivalentsequivalent common shares) less than the Current Market Price then current per share of Common Stock market price of the Company Common Shares (as defined in Section 11(d)) on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of shares of Common Stock of the Company which Shares that the aggregate subscription offering price of the total number of Common Shares and/or equivalent common shares of Common Stock of the Company or Common Stock Equivalents so to be offered (or and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price, current market price and the denominator of which shall will be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional Common Shares and/or equivalent common shares of Common Stock of the Company or Common 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 will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid by delivery of in a consideration part or all of which may will be in a form other than cash, the value of such consideration shall will be as determined in good faith by the BoardBoard of Directors of the Company, which whose determination shall will be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent. Common Shares of Common Stock of the Company owned by or held for the account of the Company shall will not be deemed outstanding for the purpose of any such computation. Such adjustment shall will 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 Purchase Price shall will be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case If the Company shall fix fixes a record date for the making of a distribution to all holders of the Common Stock of the Company Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of cash, evidences of indebtedness, cash (or other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the CompanyShares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall will be the Current Market Price then current per share of Common Stock market price of the Company Common Shares on such record date, less the fair market value (as determined in good faith by the BoardBoard of Directors of the Company, which whose determination shall will be described in a statement filed with the Rights Agent and shall be conclusive for all purposesAgent) of the portion of the cash, assets or evidences of indebtedness indebtedness, or other assets so to be distributed or of such subscription rights or warrants applicable to a share of one Common Stock of the Company Share and the denominator of which shall will be such Current Market Price current per share of Common Stock market price of the CompanyCommon Shares; provided, however, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall will be made successively whenever such a record date is fixed, ; and in the event that such distribution is not so made, the Purchase Price shall will again be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, hereunder other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” "current per share market price" of Common Stock any Security (a "Security" for the purpose of this Section 11(d)(i)) on any date shall will be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price current per share market price of the Common Stock Security is determined during a period following the announcement by the issuer of such Common Stock Security of (A) a dividend or distribution on such Common Stock Security payable in shares of such Common Stock Security or securities convertible into shares of such Common Stock (other than the Rights) shares, or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, Security and prior to the expiration of the requisite 30-30 Trading Day or 10-Trading Day period, as set forth above, Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall current per share market price will be properly appropriately adjusted to take into account ex-dividend tradingreflect the current market price per share equivalent of such Security. The closing price for each day shall will be the last sale price, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the American Stock Exchange (the "AMEX"), or if the Security is not listed or admitted to trading on the AMEX, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading, or if the Security is 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 National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then in use, or if on any such date the Security is 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 Security selected by the Board of Directors of the Company. The term "Trading Day" means a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, inif the Security is not listed or admitted to trading on any national securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and of Preferred Shares (or number or kind of sharesother shares of capital stock, or fractions thereof, purchasable upon exercise of as the case may be) covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement Effective Date (A) declare a or pay any dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company outstanding 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 in Section 7(e) hereof), the Purchase Price relating to the Preferred Shares in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation combination or reclassification, and the number and kind of shares of Common Stock of the Company (or other securitiescapital stock, as the case may be) , issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, receive the aggregate number and kind of shares of Common Stock Preferred Shares or capital stockother securities, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, date and at a time when the Preferred Shares transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, split, combination, consolidation combination or reclassification. If an event occurs which 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 Subject to Section 24(c), in the event (a “Section 11(a)(ii) Event”) that any Person shallPerson, at any time after the date hereofalone or together with its Affiliates and Associates, shall become an Acquiring PersonPerson (a "Section 11 Event") (except pursuant to a tender or exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the members of the Board who are not officers of the Company and are not Acquiring Persons or Affiliates or Associates thereof to be in the best interests of the Company and its shareholders (other than the Person or an Affiliate or Associate thereof on whose behalf the offer is being made) (a "Permitted Offer")), then then, promptly following the first occurrence of such a Section 11 Event, proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each holder of a Right (Right, except as provided below and in Section 7(e), shall, for a period of sixty (60) hereof) shall thereafter days after the later of the occurrence of any such Section 11 Event or the effective date of an appropriate registration statement pursuant to Section 9, have the a right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of fractional interests in Preferred Shares and subject to the provisions of Section 11(a)(iii), such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-ten thousandths of Common Stock of the Company a Preferred Share for which a Right was exercisable immediately prior to the first date of the occurrence of a the Section 11(a)(ii) 11 Event (whether or not at issue, and dividing such Right was then exercisable) and products by (y) dividing that product fifty percent (which following such first occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement50%) by 50% of the Current Market Price then current per share market price of a Common Stock of the Company Share (determined pursuant to Section 11(d)) on the date of such first the occurrence of the Section 11 Event at issue (such number of shares being referred to herein as the “"Adjustment Shares”"); PROVIDED, HOWEVER, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13, then only the provisions of Section 13 shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii); and PROVIDED, FURTHER, that such sixty (60) day period shall not be deemed to run during any period in which the exercise of any of the Rights or the fulfillment by the Company or the Rights Agent of its or their obligations under this Agreement shall be enjoined or otherwise prohibited in full or in part by any court or other governmental agency or body.
(iii) In lieu of issuing shares of Common Stock of the Company Adjustment Shares in accordance with Section 11(a)(ii) hereof), the Company, acting by resolution of the Board, Company may, if the Board determines that such action is necessary or appropriate and not contrary to the interests of holders of Rights, elect to (and, in the event that the number of shares of Common Stock of Board has not exercised the Company which exchange right contained in Section 24(c) and there 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 authorized but unissued Common Shares to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall) take all such action as may be necessary to authorize, issue or pay, upon the exercise of the Rights, cash (including by way of a reduction of the Purchase Price), property, Common Shares, other securities (whether equity or debt securities of the Company, acting by resolution any subsidiary of the BoardCompany, shall: (Aor otherwise) determine the excess of (1) or any combination thereof having an aggregate value equal to the value of the Adjustment Shares which otherwise would have been issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase 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 pursuant to Section 7(e) hereof11(a)(ii), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share), (3) equity securities, if any, of the Company other than Common Stock of the Company (including without limitation shares, or units of shares, which the Board has deemed to have the same value as shares of Common Stock of the Company (such shares being referred to herein as “Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has an aggregate value equal to the Current Value, where such aggregate value has been shall be determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided. For purposes of the preceding sentence, however, that if the Company value of the Adjustment Shares shall not have made adequate provision to deliver value be determined pursuant to clause Section 11(d) and the value of any fractional interests in Preferred Shares or preference stock which the Board determines to be a "common share equivalent" shall be deemed to have the same value as the Adjustment Shares. Any such election by the Board must be made and publicly announced within sixty (B60) 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 Section 11 Event at issue shall have occurred. Following the occurrence of redemption pursuant to such Section 23(a) hereof11 Event, as such date the Board may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (suspend the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment exercisability of the Purchase Price, shares Rights for a period of Common Stock of up to sixty (60) days following the Company (date on which such Section 11 Event shall have occurred to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal that the Board has not determined whether to the Spreadexercise its rights of election under this Section 11(a)(iii). If the Board shall determine in good faith that it is likely that sufficient additional shares of Common Stock of the Company Shares could be authorized for issuance upon exercise in full of the Rights, the 30-sixty (60) day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) days after following the occurrence of the Section 11(a)(ii) Trigger Date11 Event at issue, 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”). To the extent that the Company determines that some action need be taken pursuant to the first 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 or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereofshares. In the event of 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(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such datesuspended.
(b) In case If the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock of to subscribe for or purchase Preferred Shares (or shares having the Company same or more favorable rights, privileges and preferences as Preferred Shares ("equivalent preferred shares")) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents equivalent preferred shares at a price per share of Common Stock of the Company Preferred Share or per equivalent preferred share of Common Stock Equivalents (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalentsequivalent preferred shares) less than the Current Market Price then current market price (as defined in Section 11(d)) per share of Common Stock of the Company Preferred Share on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of shares of Common Stock of the Company Preferred Shares which the aggregate subscription offering price of the total number of Preferred Shares and/or equivalent preferred shares of Common Stock of the Company or Common Stock Equivalents so to be offered (or and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price, current market price and the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional Preferred Shares and/or equivalent preferred shares of Common Stock of the Company or Common Stock Equivalents so 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 by delivery of in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in reasonably and with good faith to the holders of Rights by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and conclusive for all purposes. Preferred Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, ; and in the event that such rights, options rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case If the Company shall fix a record date for the making of a distribution to all holders of Common Stock of the Company Preferred 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 (other than a regular periodic cash quarterly dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Shares, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price then current market price (as defined in Section 11(d)) per share of Common Stock of the Company Preferred Share on such record date, less the fair market value (as determined in reasonably and with good faith to the holders of Rights by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share distributable in respect of Common Stock of the Company one Preferred Share and the denominator of which shall be such Current Market Price the then current market price (as defined in Section 11(d)) per share of Common Stock of the CompanyPreferred 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 Purchase Price shall again be adjusted to be the Purchase Price which would have been be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to as provided in Section 11(a)(iii) hereof), the “Current Market Price” "current market price" per share of the Common Stock Shares on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock Shares for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, howeverHOWEVER, that in the event that the Current Market Price current per share market price of the Common Stock Shares is determined during a period following the announcement by the issuer of such Common Stock Shares of (A) a dividend or distribution on such Common Stock Shares payable in shares of such Common Stock Shares or securities convertible into shares of such Common Stock (other than the Rights) Shares or (B) any subdivision, combination, consolidation, reverse stock split combination or reclassification of such Common StockShares, and prior to the expiration of the requisite thirty (30-) Trading Day or 10-Trading Day period, as set forth above, Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, combination or reclassification, then, and in each such case, the Current Market Price "current market price" shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inin 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 Common Shares 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 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. If on any such date no market maker is making a market in the Common Shares at issue, the fair value of such shares on such date as determined reasonably and with good faith by the Board shall be used and shall be binding on the Rights Agent and conclusive for all purposes. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Common Shares at issue are listed or admitted to trading is open for the transaction of business or, if the Common Shares at issue are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Shares at issue are not publicly held or not so listed or traded, "current market price" per share shall mean the fair value per share determined reasonably and with good faith to the holders of Rights by the Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and conclusive for all purposes.
Appears in 1 contract
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect effect at the time of the record date for such dividend or of the effective effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effecteffect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after that, upon expiration of the date of occurrence of an Redemption Period and subject to Section 11(a)(ii) Event23 hereof, each registered holder of a Right (except as provided below in Section 11(a)(iii) and in Section Sections 7(e) ), 13 and 24 hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one- thousandths of a Preferred Share, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock of the Company a Preferred Share 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the Current Market Price per share of Common Stock of the Company Share on the date of such first occurrence (such number of shares being referred to as 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 Shares (or other shares of capital stock of the Company) that would result in such holder, together with such holder’s Affiliates and Associates, becoming the Beneficial Owner of more than twelve percent (12.0%) of the then-outstanding Common Shares. If a holder would, but for the immediately preceding sentence, be entitled to receive a number of shares that would otherwise result in such holder, together with such holder’s Affiliates and Associates, becoming the Beneficial Owner of in excess of twelve percent (12.0%) of the then-outstanding Common Shares (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 election of the Company, a note or other evidence of indebtedness maturing within twelve (12) months with a principal amount, equal to the current per share Current Market Price of a share of Common Shares 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.
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are Shares authorized by the Company’s certificate Restated Articles of incorporation Incorporation, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights Rights, is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the ““ Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) Common Shares or other equity securities, if any, of the Company other than Common Stock securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Shares, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company Shares (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (30) calendar days following the later of (xI) the first occurrence of a Section 11(a)(ii) Event and (yII) the date on which the Company’s right of redemption pursuant to Section 23(a) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (xI) and (yII) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30-) calendar day period set forth above may be extended to the extent necessary, but not more than 90 ninety (90) calendar days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such thirty (30) calendar day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value of the Current Market Price per Common Stock of the Company Share on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock of Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred Shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares at a price per share of Common Stock of the Company Preferred Share or per share of Common Stock Equivalents Equivalent Preferred Share (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock EquivalentsEquivalent Preferred Shares) less than the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents Preferred Shares outstanding on such record date, (ii) plus the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which Preferred Shares that the aggregate subscription offering price of the total number of shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares so to be offered offered (or the aggregate initial conversion price of the convertible securities so to be offeredoffered) would purchase at such Current Market Price, and the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares to be offered offered for subscription or purchase (or into which the convertible securities so to be offered offered are initially convertible). In case such subscription price may be paid by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holders of the Company Rights. 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 adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Stock of the Company Preferred 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 (other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Shares, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect effect after such record date shall be determined by multiplying the Purchase Price in effect effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, less the fair market value (as determined in good faith by the Board, which 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 or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Share, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inthirty
Appears in 1 contract
Samples: Rights Agreement
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this the adoption of the Original Rights Agreement (A) declare or pay a dividend on the outstanding shares of Common Stock of the Company Preferred Shares payable in shares of Common Stock of the CompanyPreferred Shares, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Shares, (C) combine or consolidate the outstanding shares of Common Stock of the Company Preferred Shares into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company 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) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares of Common Stock of the Company Preferred Shares or fractions thereof (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Common Stock Preferred Shares or fractions thereof (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Stock Preferred Share (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification. If an event occurs which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after that, upon expiration of the date of occurrence of an Section 11(a)(ii) EventRedemption Period, each registered holder of a Right (except as provided below in Section 11(a)(iii) and in Section Sections 7(e) ), 13 and 24 hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a Preferred Share, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock of the Company a Preferred Share 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the Current Market Price per share of Common Stock of the Company Share on the date of such first occurrence (such number of shares being referred to as shares, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are Shares authorized by the Company’s certificate Amended and Restated Certificate of incorporation Incorporation, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights Rights, is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) Common Shares or other equity securities, if any, of the Company other than Common Stock securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Shares, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company Shares (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (30) days following the later of (xI) the first occurrence of a Section 11(a)(ii) Event and (yII) the date on which the Company’s right of redemption pursuant to Section 23(a) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (xI) and (yII) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company Shares could be authorized for issuance upon exercise in full of the Rights, the 30-30 day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30 day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock of the Company Share on the Section 11(a)(ii) Trigger Date, Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value of the Current Market Price per Common Stock of the Company Share on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Stock of the Company Preferred Shares entitling them to subscribe for or purchase (for a period expiring within 45 forty-five (45) calendar days after such record date) Common Stock of Preferred Shares (or shares having the Company same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred Shares”)) or securities convertible into Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares at a price per share of Common Stock of the Company Preferred Share or per share of Common Stock Equivalents Equivalent Preferred Share (or having a conversion price per share, if a security convertible into Common Stock of the Company Preferred Shares or Common Stock EquivalentsEquivalent Preferred Shares) less than the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock of the Company or Common Stock Equivalents Preferred Shares outstanding on such record date, (ii) plus the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which Preferred Shares that the aggregate subscription offering price of the total number of shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred Shares 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 the denominator of which shall be the sum of (i) the number of shares of Common Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities Preferred Shares outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Stock of the Company Preferred Shares or Common Stock Equivalents Equivalent Preferred 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holders of the Company Rights. 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 adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Stock of the Company Preferred 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 (other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the CompanyPreferred Shares, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock of the Company Preferred Share on such record date, less the fair market value (as determined in good faith by the Board, which 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 or evidences of indebtedness so to be distributed distributed, or of such subscription rights or warrants applicable to a share of Common Stock of the Company Preferred Share, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price Price” per share of Common Stock Share on any date shall be deemed to be the average of the daily closing prices Closing Prices per share of such Common Stock Share for the 10 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock Share is determined during a period following the announcement by the issuer of such Common Stock Share of (A) a dividend or distribution on such Common Stock Shares payable in shares of such Common Stock Shares or securities convertible into shares of such Common Stock Shares (other than the Rights) ), or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common StockShares, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock splitsplit or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Day or ten (10) Trading Day period, or reclassificationas set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price Closing Price for each day shall be the last sale price, regular way, or, inin 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 NYSE or, if the Common Shares are not listed or admitted to trading on the NYSE, as reported in the principal consolidated transaction reporting system with respect to 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 on a quotation system then in use, or, if on any such date the Common Shares are not so quoted, 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. If on any such date the Common Shares are not publicly held and are not so listed, admitted to trading, or quoted, and no market maker is making a market in the Common Shares, the “Current Market Price” per Common Share shall mean the fair value per share on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holders of the Rights.
Appears in 1 contract
Samples: Rights Agreement (Tempur Sealy International, Inc.)
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the outstanding shares of Common Preferred Stock of the Company payable in shares of Common Stock of the CompanyPreferred Stock, (B) subdivide or split the outstanding shares of the Common Stock of the CompanyPreferred Stock, (C) combine or consolidate the outstanding shares of Common Preferred Stock of the Company into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common shares of Preferred Stock of the Company (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 Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, split, combination, consolidation consolidation, or reclassification, and the number and kind of shares (or fractions thereof) of Common Preferred Stock of the Company (or other securitiescapital stock, as the case may be) ), issuable on such date, shall be proportionately adjusted so that the registered holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Common Preferred Stock (or other capital stock, as the case may be), which, if such Right had been exercised immediately prior to such date, date (whether or not such Right was then exercisable, ) and at a time when the transfer books for the Common Preferred Stock (or other capital stock, as the case may be) 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, split, combination, consolidation consolidation, or reclassification; provided, however, that in no event shall 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 which 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 any Person shall become an Acquiring Person (a “Section 11(a)(ii) Event”), then, promptly following the occurrence of such Section 11(a)(ii) that any Person shallEvent, at any time after the date hereof, become an Acquiring Person, then proper provision shall be made so that promptly after the date of occurrence of an Section 11(a)(ii) Event, each registered holder of a Right (except as provided below and in Section 7(e) ), Section 13 and Section 24 hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price (but in no event less than the par value per share) in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock of the Company 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) Event, and (yB) dividing that product (which which, following such first occurrence occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this AgreementAgreement other than Section 13 hereof) by 50% of the Current Market Price per share of Common Stock of the Company on the date of such first occurrence (such number of shares being referred to as of Common Stock, the “Adjustment Shares”).
(iii) In lieu of issuing shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that (A) the number of shares of Common Stock of the Company which are authorized by the Company’s certificate Certificate of incorporation Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is Rights, are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (B) the foregoing subparagraph (ii) of this Section 11(a)Board otherwise shall determine to do so in its sole discretion, the Company, acting by resolution of the Board, shall: (A) determine the excess of shall (1) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ), and (2) the Purchase 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 the exercise of such Right and payment of the applicable Purchase Price, (1u) cash, (2v) a reduction in the Purchase Price (but in no event shall the Purchase Price be less than the par value per share)Price, (3w) equity securities, if any, of the Company other than Common Stock or other equity securities of the Company (including including, without limitation limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock of the Company (such shares of preferred stock being referred to herein as “Common Stock Equivalents”)), (4x) debt securities of the Company, (5y) other assets assets, or (6z) any combination of the foregoing, which, when added to any shares of Common Stock of the Company issued upon such exercise, has having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if that, if, under the circumstances set forth in clause (A) above, the Company shall not have made adequate provision to deliver value pursuant to clause (B2) above within 30 thirty (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) hereof, as such date may be extended pursuant to Section 23(a) hereof or amended pursuant to Section 26 hereof, expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock of the Company (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of the Current Value over the Purchase Price. If the Board shall determine determines in good faith that it is likely that sufficient additional shares of Common Stock of the Company 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 90 ninety (90) days after following the first occurrence of a Section 11(a)(ii) Trigger DateEvent, in order that the Company may seek shareholder stockholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, being referred to is herein as called the “Substitution Period”). To the extent that the Company determines that some action need is to be taken pursuant to the first or second third 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 Rights, and (y) the Company may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any such stockholder approval for such authorization of additional shares 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 any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended and suspended, as well as a public announcement at such time as the suspension is no longer in effect, in each case with simultaneous written notice to the Rights Agent. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company each Adjustment Share shall be the Current Market Price per share of the Common Stock on the date of the Company on the first occurrence of a Section 11(a)(ii) Trigger Date, Event and the per share or per unit value of any Common Stock Equivalent shall be deemed to be equal to the value Current Market Price per share of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options options, or warrants to all registered holders of Common Preferred Stock of the Company entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) Common Preferred Stock (or shares having the same rights, privileges, and preferences as the shares of the Company Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Common shares of Preferred Stock of the Company or Common Equivalent Preferred Stock Equivalents at a price per share of Common Preferred Stock of the Company or per share of Common Equivalent Preferred Stock Equivalents (or having a conversion price per share, if a security convertible into Common shares of Preferred Stock of the Company or Common Stock EquivalentsEquivalent Preferred Stock) less than the Current Market Price per share of Common Preferred Stock of the Company on such record date, except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the sum number of (i) shares of Preferred Stock outstanding on such record date plus the number of shares of Common Preferred Stock of the Company or Common Stock Equivalents outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) the number of shares of Common Stock of the Company which that the aggregate subscription or offering price of the total number of shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents so to be offered (or 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 sum of (i) the number of shares of Common Preferred Stock of the Company outstanding on such record date, (ii) the number of shares of Common Stock of the Company or Common Stock Equivalents underlying securities outstanding on such record date which are convertible into Common Stock of the Company or Common Stock Equivalents and (iii) plus the number of additional shares of Common Preferred Stock of the Company or Common and/or Equivalent Preferred Stock Equivalents 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 by delivery of consideration consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be binding and conclusive for all purposes. Shares of Common Stock purposes on the Rights Agent and the holder of the Company Rights. Preferred Stock owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights, options options, or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all registered holders of Common Preferred Stock of the Company (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 earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock shares of the CompanyPreferred Stock, but including any dividend payable in stock other than Common Stock of the CompanyPreferred Stock) or evidences of indebtedness, or of subscription rights rights, options or warrants (excluding those referred to in Section 11(b) hereof), except as otherwise provided in Section 11(a) and Section 7(e) hereof, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price per share of Common Preferred Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed distributed, or of such subscription rights rights, options or warrants applicable to a share of Common Stock of the Company Preferred Stock, and the denominator of which shall be such Current Market Price per share of Common Stock of the CompanyPreferred Stock. 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 Purchase Price shall be adjusted to be the Purchase Price which that would have been then be in effect if such record date had not been fixed.
(di) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights) or (B) any subdivision, combination, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split, or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, inDays
Appears in 1 contract
