Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number 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 Rights Dividend Declaration Date (A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital 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 Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which such Right is then exercisable and dividing that product by (y) 50% of the current market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the 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 (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii). (b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the
Appears in 4 contracts
Samples: Rights Agreement (Goodyear Tire & Rubber Co /Oh/), Rights Agreement (Goodyear Tire & Rubber Co /Oh/), Rights Agreement (Goodyear Tire & Rubber Co /Oh/)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares of Preferred Stock covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the Rights Dividend Declaration Date date of this Agreement:
(A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, ;
(B) subdivide the outstanding Preferred Stock, ;
(C) combine the outstanding Preferred Stock into a smaller number of shares or shares, or
(D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, 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) hereofherein, 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 or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) Subject to Section 24 In the event:
(A) any Acquiring Person, Adverse Person or any Associate or Affiliate of any Acquiring Person or Adverse 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 Shares of the Company shall remain outstanding and unchanged,
(2) shall, in one transaction or a series of transactions, transfer any assets to the event Company or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of capital stock of the Company or any of its Subsidiaries or for securities exercisable for or convertible into shares of any class of capital stock of the Company (Common Shares or otherwise) or otherwise obtain from the Company (with or without consideration), any additional shares of any class of capital stock of the Company or securities exercisable for or convertible into shares of any class of capital stock of the Company (other than pursuant to a pro rata distribution to all holders of Common Shares),
(3) 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 in arm's-length negotiation with an unaffiliated third party other than pursuant to a transaction set forth in Section 13(a) hereof,
(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 (other than incidental lines of business if any, engaged in as of the date hereof between the Company and such Acquiring Person, Adverse Person or Affiliate or Associate) assets having an aggregate fair market value of more than $1,000,000 other than pursuant to a transaction set forth in Section 13(a) hereof,
(5) shall receive any compensation from the Company or any of its 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
(6) 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 advantage provided by the Company or any of its Subsidiaries, or
(B) Any Person (other than the Company, any Company Subsidiary, any employee benefit plan of the Company or of its Subsidiaries or any Person, alone or together with its Affiliates and Associatesentity organized, becomes appointed or established by the Company for or pursuant to the terms of any such plan), shall at any time after the Rights Dividend Declaration Date Date, become an Acquiring Person, except as unless the result of event causing such person to become an Acquiring Person is
(1) a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which such Right is then exercisable and dividing that product by (y) 50% of the current market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.or
(iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the 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 (such excess, the "Spread"), acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which on terms determined by at least a majority of the Independent Directors and members of the Board of Directors who are not officers of the Company have deemed to have the same value as the Common Stock (such preference sharesand who are not representatives, "common stock equivalents"))nominees, (4) debt securities Affiliates or Associates of the Company, (5) other assetsan Acquiring Person, or (6) any combination of the foregoingAdverse Person, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the after receiving advice of a nationally recognized from one or more investment banking firm selected by the Board of Directors of the Company; providedfirms, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in thebe:
Appears in 2 contracts
Samples: Rights Agreement (Med Waste Inc), Rights Agreement (Renex Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number 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 Rights Dividend Declaration Date (A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital 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 Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which such Right is then exercisable and dividing that product by (y) 50% of the current market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.
(iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the 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 (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in theinitially
Appears in 2 contracts
Samples: Rights Agreement (Goodyear Tire & Rubber Co /Oh/), Rights Agreement (Goodyear Tire & Rubber Co /Oh/)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event If the Company shall at any time after the Rights Dividend Declaration Date date of this Agreement (A) declare a dividend on the Preferred Stock Shares payable in shares of the Preferred StockShares, (B) subdivide the outstanding Preferred StockShares, (C) combine the outstanding Preferred Stock Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock Shares (including any such reclassification in connection with a combination, 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 immediately prior to the record date for such dividend or of the effective date of such subdivision, combination or reclassification, as applicable, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 the aggregate number and kind of shares of Preferred Stock capital stock which he would have owned upon such exercise and been entitled to receive as a result of such dividend, subdivision, combination or capital stock, as the case may be, which, reclassification if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock Shares transfer books of the Company were open; PROVIDED, he would have owned HOWEVER, that in no event shall the consideration to be paid upon such the exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassificationone 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 would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) Subject to Section 24 of this Agreement, in the event if any Person, alone or together with its Affiliates and Associates, Person becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided below and in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one ten-thousandths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement, Agreement and in lieu of shares of Preferred StockShares, such number of shares of the 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 one oneten-hundredths thousandths of a share of Preferred Stock Share for which such a Right is then exercisable and (y) dividing that product by (y) 50% of the then current per share market price per share of the Company's Common Stock of the Company Shares (determined pursuant to Section 11(d)) hereof) on the date of the occurrence of such event. If any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price Person shall become an Acquiring Person and the number of Adjustment Shares Rights shall then be further adjusted as provided in this Agreement outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to reflect any events occurring after be afforded by the date of such first occurrenceRights.
(iii) In the event that the number lieu of shares issuing Common Shares of the Common Stock which Company in accordance with Section 11(a)(ii) hereof, the Company may, in the sole discretion of the Board of Directors, elect to, and, if the Board of Directors has not exercised the exchange right contained in Section 24 hereof and there are authorized by the Company's Amended Articles 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 the foregoing subparagraph (iiSection 11(a)(ii), the Company shall (A) determine the excess of (1) the value of the Adjustment Shares issuable shall, take all such action as may be necessary to authorize, issue or pay, upon the exercise of a Right Rights, cash (the "Current Value") over (2) the Purchase Price (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise including by way of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in of the Purchase Price), (3) Common Stock property, or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Valuevalue of the Common Shares of the Company which otherwise would have been issuable pursuant to Section 11(a)(ii), where such which aggregate value has been shall be determined by a majority of the Independent Directors Board of Directors. For purposes of the preceding sentence, the value of the Common Shares shall be determined pursuant to Section 11(d) hereof and the value of any equity securities which a majority of the Board 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 Company based upon same value as the advice of a nationally recognized investment banking firm selected Common Shares. Any such election by the Board of Directors of the Company; provided, however, if the Company shall not have must be made adequate provision to deliver value pursuant to clause (B) above and publicly announced within thirty (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) expires, as the same may be extended pursuant to Section 27 (the later of (x) and (y) being referred to herein as the "event described in Section 11(a)(ii) Trigger Date"shall have occurred. Following the occurrence of the event described in Section 11(a)(ii), then the Company shall be obligated to deliver, upon the surrender for exercise a majority of a Right and without requiring payment of the Purchase Price, shares of the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine then in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) office 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 such directors have not determined whether to exercise the Company's right of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereofelection under this Section 11(a)(iii). In the event of any such suspension, the Company will shall issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock Shares (or securities shares having substantially the same or more favorable rights, privileges and preferences as the Preferred Stock Shares ("preferred stock equivalentsequivalent Preferred Shares")) or securities convertible into Preferred Stock Shares or preferred stock equivalents equivalent Preferred Shares at a price per share of Preferred Stock Share or per share of preferred stock equivalents equivalent Preferred Share (or having a conversion price per share, if in the case of a security convertible into Preferred Stock Shares or preferred stock equivalentsequivalent Preferred Shares) less than the then current per share market price of the Preferred Shares (as defined in Section 11(d)) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock Shares outstanding on such record date plus the number of shares of the Preferred Stock Shares which the aggregate offering price of the total number of shares of Preferred Stock Shares and/or equivalent Preferred Shares 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 number of shares of the Preferred Stock Shares outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents Shares and/or equivalent Preferred Shares 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 shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent. Preferred Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that if 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 event that Company shall fix a record date for the making of a distribution to all holders of the Preferred Stock Shares (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than or a dividend payable in Preferred Stock, but including any dividend payable in Common StockShares) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 then current per share market price, as defined in Section 11(d), per one one-hundredth price of a share of the Preferred Stock Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock Share and the denominator of which shall be such current per share market price per of the Preferred Shares; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one one-hundredth Right be less than the aggregate par value of a share the shares of Preferred Stockcapital 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 if such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to under Section 11(a)(iii)) hereof, the "current per share market price" per share of any security (a "Security" for the Common Stock purpose of this Section 11(d)(i)) on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the thirty (30) 30 consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)defined) immediately prior to such date anddate, and for purposes the purpose of computations made pursuant to any computation under Section 11(a)(iii) hereof, the "current market price" per share of the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in theper
Appears in 2 contracts
Samples: Rights Agreement (Abbott Laboratories), Rights Agreement (Abbott Laboratories)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number 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 Rights Dividend Declaration Date (A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital 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 Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the 18 Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which such Right is then exercisable and dividing that product by (y) 50% of the current market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.
(iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the 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 (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in theinitially
Appears in 2 contracts
Samples: Rights Agreement (Goodyear Tire & Rubber Co /Oh/), Rights Agreement (Goodyear Tire & Rubber Co /Oh/)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by each which may be purchased upon exercise of a Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the Rights Dividend Declaration date of this Agreement and prior to the close of business on the earlier of the Redemption Date or the Final Expiration Date (A) declare a or pay any dividend on the Preferred Stock Shares payable in shares of the Preferred StockShares, (B) subdivide the outstanding Preferred StockShares, (C) combine the outstanding Preferred Stock Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock Shares (including any such reclassification in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided then and in this Section 11(a) and Section 7(e) hereofeach such event, the Purchase Price in effect at the time of the record date for such dividend or of on the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Stock Shares or capital 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 Preferred Stock Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock Right was exercisable and the transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(ill(a)(i) and Section 11(a)(ii)ll(a)(ii) hereof, the adjustment provided for in this Section 11(a)(ill(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(iill(a)(ii) hereof.
(ii) Subject to Section 24 of this Agreement24, in the event that, at any Persontime after the date of this Agreement any Person (other than the Company, any wholly owned Subsidiary of the Company, any Plan of the Company or of a Subsidiary of the Company, or any Person holding Common Shares for or pursuant to the terms of any such Plan), alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date shall become an Acquiring Person, Person (except as the result of in a transaction set forth in to which the provisions of Section 13(a) hereofhereof apply), then, prior to immediately upon the date on which the Company's right occurrence of redemption pursuant to such event (a "Section 23(all(a)(ii) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(iievent"), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e7(f) hereof, shall thereafter have a right to receivereceive for each Right, upon exercise thereof at the then current Purchase Price in accordance with the terms of this AgreementAgreement and payment of the then-current Purchase Price, in lieu of shares one one-hundredth of a Preferred StockShare, such number of shares of the 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 one one-hundredths of a share of Preferred Stock Share for which such a Right is then was exercisable immediately prior to the first occurrence of a Section ll(a)(ii) event, and dividing that product by (y) 50% 50 percent of the current per share market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)ll(d) hereof) for Common Shares on the date of the such first occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is being hereinafter referred to as the "Adjustment Shares"), ; provided that such provision shall not be effective until such time as the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement Rights are no longer subject to reflect any events occurring after the date of such first occurrenceredemption pursuant to Section 23(a) hereof.
(iii) In lieu of issuing Common Shares in accordance with Section ll(a)(ii) hereof, the Company may, if the Board of Directors determines that such action is necessary or appropriate and not contrary to the interest of holders of Rights, and, in the event that the number of shares of the Common Stock Shares which are authorized by the Company's Amended Articles 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)Section ll(a)(ii) hereof, the 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 (such excessshall, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for all or a portion of the Adjustment Shares, Shares upon exercise of the Rights and payment of the applicable Purchase Price, Price (1A) cash, (2B) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, shares of preferred stock or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have preferred stock having the same value as the Common Stock Shares (such preference sharesshares or units of preferred stock, "common stock equivalents")), (4C) debt securities of the Company, (5D) other assets, assets or (6E) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on Adjustment Shares for which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it substitution is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period")made. To the extent that the Company determines that some action need is to be taken pursuant to the first and/or second sentences of this Section 11(a)(iiill(a)(iii), the Company (u) shall provide, subject to section 7(eSection 7(f) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall at any time after the close of business on the Record Date and prior to the close of business on the earlier of the Redemption Date or the Final Expiration Date fix a record date prior to the Redemption Date or Final Expiration Date for the issuance of rights, options or warrants to all holders of Preferred Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock Shares (or securities shares having substantially the same or more favorable rights, privileges and preferences as the Preferred Stock Shares ("equivalent preferred stock equivalentsshares")) or securities convertible into Preferred Stock Shares or equivalent preferred stock equivalents shares, at a price per share of Preferred Stock Share or per share of equivalent preferred stock equivalents share (or having a conversion an effective price per share, if share or a converted basis in the case of a security convertible into Preferred Stock Shares or equivalent preferred stock equivalentsshares) less than the current per share market price of the Preferred Shares (as defined determined in accordance with Section 11(d) hereof) per share of Preferred Stock on such record date, then 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 number of shares of the Preferred Stock Shares outstanding on such record date plus the number of shares of the Preferred Stock Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of Preferred Stock 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 price, and the denominator of which shall be the number of shares of the Preferred Stock Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be described net forth in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that the Company shall at any time after the close of business on the Record Date and prior to the close of business on the earlier of the Redemption Date or the Final Expiration Date fix a record date for the making of a distribution to all holders of the Preferred Stock Shares (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than or a dividend payable in Preferred Stock, but including any dividend payable in Common StockShares) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 per share market price, price per one Preferred Share (as defined determined in accordance with Section 11(d), per one one-hundredth of a share of Preferred Stock ) hereof) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock Share, and the denominator of which shall be such current per share market price per one one-hundredth of a share of Preferred StockShare. 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 then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii)) hereof, the "current per share 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 for the thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 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 for the 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in theeach
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares or other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the Rights Dividend Declaration Date date of this Agreement (A) declare and pay a dividend on the Preferred Stock shares which are subject to the Rights ("Subject Shares") payable in shares of stock of the Preferred StockCompany, (B) subdivide or split the outstanding Preferred StockSubject Shares, (C) combine or consolidate the outstanding Preferred Stock Subject Shares into a smaller number of shares or effect a reverse stock split of the Subject Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock Subject Shares (including any such reclassification in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation), then, and in each such event, 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, combination split, reverse split, combination, consolidation or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned received upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination split, reverse 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), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) Subject to Section 24 of this Agreement, in In the event any Person, alone or together with its Affiliates and Associates, becomes that at any time after the Rights Dividend Declaration Date date of this Agreement
(A) any Acquiring Person, or any Associate or Affiliate of any Acquiring Person, directly or indirectly (1) shall merge into the Company or any of its Subsidiaries or otherwise combine with the Company or any of its Subsidiaries and the Company or such Subsidiary shall be the continuing or surviving corporation of such merger or combination and the Common Stock shall remain outstanding and the outstanding shares thereof shall not be changed into or exchanged for stock or other securities of the Company or of any other Person or cash or any other property, or (2) shall sell or otherwise transfer in one or more transactions, assets to the Company or any of its Subsidiaries in exchange for 25 percent or more of the shares of any class of capital stock of the Company or any of its Subsidiaries, and the Common Stock shall remain outstanding and unchanged, or
(B) directly or indirectly, any Acquiring Person, or any Associate or Affiliate of any Acquiring Person, shall (1) in one or more transactions, transfer any assets to the Company or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of capital stock of the Company or any of its Subsidiaries or for securities exercisable for or convertible into shares of any class of capital stock of the Company or any of its Subsidiaries or otherwise obtain from the Company or any of its Subsidiaries, with or without consideration, any additional shares of any class of capital stock of the Company or any of its Subsidiaries or other securities exercisable for or convertible into shares of any class of capital stock of the Company or any of its Subsidiaries (other than as part of a pro rata distribution by the Company or such Subsidiary to all holders of Common Stock), (2) sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose (in one or more 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 or such Subsidiary than the Company or such Subsidiary would be able to obtain in arm's-length negotiation with an unaffiliated third party, (3) receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee, or fees for serving as director, at rates in accordance with the Company's (or its Subsidiaries') past practices, or (4) receive the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance provided by the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company or such Subsidiary than the Company or such Subsidiary would be able to obtain in arm's-length negotiation with an unaffiliated third party, or
(C) during any such time as there is an Acquiring Person, except as there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the result Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other similar 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 such Acquiring Person) which has the effect, directly or indirectly, of increasing by more than one percent the proportionate share of the outstanding shares of any class of equity securities, or of securities exercisable for or convertible into equity securities, of the Company or any of its Subsidiaries which is directly or indirectly owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, or
(D) any Person shall become an Acquiring Person otherwise than pursuant to a transaction set forth in Section 13(a) hereofQualified Offer, then, prior and in each such case, but subject to the date on which the Company's right provisions of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided below and in Section 7(e7(f), shall, on and after the later of (I) hereofthe date of the occurrence of an event described in clause (A), shall thereafter (B), (C) or (D) of this Section 11(a)(ii), or (II) the date of the expiration of the period within which the Rights may be redeemed pursuant to Section 23 (as the same may have a been amended as provided in Section 26), have the right to receive, upon exercise thereof at and payment of ten times the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred StockPrice, such number of shares of Common Stock as shall equal the result obtained by (x) multiplying by ten the product of the then current Purchase Price and the then number of Units for which a Right is then exercisable and dividing that product by (y) 50 percent of the current market price per share of Common Stock (determined in accordance with Section 11(d)) on the date of the occurrence of the relevant event listed above in clause (A), (B), (C) or (D) of this subparagraph (ii); 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). The Company shall not consummate any such merger, combination, transfer or transaction referred to in any of such clauses (A), (B) and (C) unless prior thereto there shall be sufficient authorized but unissued Common Stock to permit the exercise in full of the Rights in accordance with the foregoing sentence, unless the Board of Directors has determined to issue Equivalent Stock in accordance with Section 7(a); provided, however, that in no case may the Company consummate any such merger, combination, transfer or transaction if at the time of or immediately after such transaction there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights. In the event that the Company issues Equivalent Stock upon the exercise of any Rights pursuant to the immediately preceding paragraph, then, upon any such exercise, proper provision shall be made so that the holder of a Right (except as provided in Section 7(f)) shall have the right to receive, upon such exercise at the then current Purchase Price, such number of shares or other units of Equivalent Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock Units for which such a Right is then exercisable and dividing that product by (y) 50% 50 percent of the current market price per share or other unit of the Common Equivalent Stock of the Company (determined pursuant to on substantially the same basis as is prescribed by Section 11(d)) with respect to the valuation of Common Stock) on the date of the occurrence of any one of the events relevant event listed above in clause (A), (B), (C) or (D) of this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.
(iii) . In the event that at any time the number Company should be prohibited by law, by any provision of shares its Certificate of Incorporation, or by any instrument or agreement to which the Common Stock Company is a party or by which are authorized by the Company's Amended Articles it is bound, from issuing, or should be unable under its Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not to issue, sufficient Equivalent Stock to permit the exercise in full of the all outstanding Rights in accordance with the foregoing subparagraph (ii)sentence, then, in lieu of issuing such Equivalent Stock upon such exercise, the Company shall (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise pay to each holder of a Right (the "Current Value"except as provided in Section 7(f)) over (2) the Purchase Price (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise surrender of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, Right as provided herein but without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or an amount in cash have an aggregate value for each Right equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii)Purchase Price.
(b) In the event that case the Company shall at any time after the Rights Record Date fix a record date for the issuance of rights, options rights or warrants to all holders of Preferred Common Stock or Subject Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Common Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) Subject Shares or securities convertible into Preferred Common Stock or preferred stock equivalents Subject Shares at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalentsCommon Stock) less than the current market price per share (as defined determined in accordance with Section 11(d)) hereof) per share of Preferred Stock on such record date, 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, of which the numerator of which shall be the total number of shares of the Preferred Common Stock and Subject Shares outstanding on such record date plus the number of shares of the Preferred Common Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 of which the denominator of which shall be the total number of shares of the Preferred Common Stock and Subject Shares outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription or purchase price may be paid by delivery of consideration part paid, in whole or all of which shall be in part, in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 event that Company shall at any time after the Rights Record Date fix a record date for the making of a distribution to all holders on the shares of Preferred Common Stock or the Subject Shares, whether by way of a dividend, distribution, reclassification of stock, recapitalization, reorganization or partial liquidation of the Company or otherwise (and including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, of subscription rights or warrants (excluding those referred to in Section 11(b)), evidences of indebtedness or other assets (other than (i) hereofregular periodic cash dividends, (ii) a dividend payable in Common Stock or (iii) a distribution which is part of or is made in connection with a transaction to which Section 11(a)(ii) or Section 13 applies), 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, of which the numerator of which shall be the current market price, as defined price per share of Common Stock (determined in accordance with Section 11(d), per one one-hundredth of a share of Preferred Stock ) on such record date, less the fair market value applicable to one share of Common Stock (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the such assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable so to one one-hundredth be distributed, and of a share of Preferred Stock and which the denominator of which shall be such current market price per one one-hundredth of a share of Preferred Common 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(id) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 ten (10) 30 consecutive Trading Days immediately following prior to such date; provided, however, that in the event that the current market price per share of the Common Stock is determined during the 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 such shares of Common Stock (other than the Rights) or (B) any subdivision, combination 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, Days after the ex-dividend date for such dividend or distribution or the record date for such subdivision, combination or reclassificationdistribution, then, and in each such case, the current market price shall be appropriately adjusted to take into account reflect the current market price per share of Common Stock in connection with 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Inc., Automated Quotation System ("NASDAQ") or such other system then in use, or, if ). If on any such date the shares of the Common Stock are not quoted by any such organization, the average fair market value of such shares on such date as determined in good faith by the Board of Directors of the closing bid issuer of such Common Stock shall be used. Any such determination of current market price shall be described in a statement filed with the Rights Agent. For the purpose of any computation hereunder, the "current market price" of a Unit shall be deemed to be equal to the current market price per share of Common Stock, and asked prices as furnished the "current market price" of a Subject Share shall be deemed to be equal to the current market price per share of Common Stock divided by the number of Subject Shares which comprise a professional market maker making a market in theUnit.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.:
(i) In the event the Company shall at any time after the Rights Dividend Declaration Date date of this Agreement (A) declare a dividend on the Preferred Stock Shares payable in shares of the Preferred StockShares, (B) subdivide the outstanding Preferred StockShares, (C) combine the outstanding Preferred Stock Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock Shares (including any such reclassification in connection with a combination, 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, Person becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a other than pursuant to any transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), then proper provision shall be made so that each holder of a Right, Right (except as otherwise provided below and in Section 7(e)) hereof, shall thereafter have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event in accordance with the terms of this Agreement, Agreement and in lieu of shares of Preferred StockShares, such number of shares of the 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 one one-hundredths of a share of Preferred Stock Share for which such a Right is then was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) 50% of the then current per share market price per share of the Company's Common Stock of the Company Shares (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this subparagraph (ii) such event (such number of shares is hereinafter being referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.
(iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the 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 (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in theAdjustment
Appears in 1 contract
Samples: Rights Agreement (Fourth Shift Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company Corporation shall at any time after the Rights Dividend Declaration Date date of this Agreement (A) declare a dividend on the Preferred Stock Shares payable in shares of the Preferred StockShares, (B) subdivide the outstanding Preferred StockShares, (C) combine the outstanding Preferred Stock Shares into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock Shares (including any such reclassification in connection with a combination, consolidation or merger in which the Company Corporation 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock Shares transfer books of the Company Corporation were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Corporation issuable upon 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), 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 by Section 11(a)(ii) hereof).
(ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, Person becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, Person then, prior to promptly following the date on which the Company's right first occurrence of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this such Section 11(a)(ii)) Event, proper provision shall be made so that each holder of a Right, Right (except as provided below and in Section 7(e) hereof, ) shall thereafter have a the right to receive, upon exercise thereof at the then then-current Purchase Price in accordance with the terms of this Agreement, in lieu of shares a number of one one-thousandths of a Preferred StockShare, such number of shares Common Shares of the Common Stock of the Company Corporation as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of one one-hundredths thousandths of a share of Preferred Stock Share for which such a Right is then exercisable assuming it was exercisable, and could have been exercised immediately prior to the first occurrence of a Section 11(a)(ii) Event, 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 (y) 50% of the current per share market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) hereof) of the Common Shares on the date of the such first occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as shares, the "Adjustment Shares"); provided, provided however, that the Purchase Price and the number of Adjustment Common Shares so receivable upon exercise of a Right shall thereafter be subject to further adjusted adjustment as provided appropriate in this Agreement to reflect any events occurring after the date of such first occurrenceaccordance with Section 11(f) hereof.
(iii) The Corporation may at its option (evidenced by a certified resolution of the Corporation's Board of Directors delivered to the Rights Agent) substitute for a Common Share issuable upon the exercise of Rights in accordance with the foregoing subparagraph (ii) such number of fractions of Preferred Shares having an aggregate current market value equal to the current per share market price of a Common Share. In the event that the number of shares of the Common Stock Shares which are authorized by the CompanyCorporation's Amended Articles Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is 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 Corporation shall to the extent permitted by applicable law and any material agreement then in effect to which the Corporation is a party: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (2) the Purchase Price (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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 Rights which shall be the current market price, as defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made have become void pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 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 the 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 such Common Stock (other than the Rights) or (B) any subdivision, combination 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 or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in theSection
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares or other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the Rights Dividend Declaration Date date of this Agreement (A) declare and pay a dividend on the Preferred Stock shares which are subject to the Rights ("Subject Shares") payable in shares of stock of the Preferred StockCompany, (B) subdivide or split the outstanding Preferred StockSubject Shares, (C) combine or consolidate the outstanding Preferred Stock Subject Shares into a smaller number of shares or effect a reverse stock split of the Subject Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock Subject Shares (including any such reclassification in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation), then, and in each such event, 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, combination split, reverse split, combination, consolidation or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned received upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination split, reverse 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), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof).
(ii) Subject to Section 24 of this Agreement, in In the event any Person, alone or together with its Affiliates and Associates, becomes that at any time after the Rights Dividend Declaration Date date of this Agreement
(A) any Acquiring Person, or any Associate or Affiliate of any Acquiring Person, directly or indirectly (1) shall merge into the Company or any of its Subsidiaries or otherwise combine with the Company or any of its Subsidiaries and the Company or such Subsidiary shall be the continuing or surviving corporation of such merger or combination and the Common Stock shall remain outstanding and the outstanding shares thereof shall not be changed into or exchanged for stock or other securities of the Company or of any other Person or cash or any other property, or (2) shall sell or otherwise transfer in one or more transactions, assets to the Company or any of its Subsidiaries in exchange for 25 percent or more of the shares of any class of capital stock of the Company or any of its Subsidiaries, and the Common Stock shall remain outstanding and unchanged, or
(B) directly or indirectly, any Acquiring Person, or any Associate or Affiliate of any Acquiring Person, shall (1) in one or more transactions, transfer any assets to the Company or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of capital stock of the Company or any of its Subsidiaries or for securities exercisable for or convertible into shares of any class of capital stock of the Company or any of its Subsidiaries or otherwise obtain from the Company or any of its Subsidiaries, with or without consideration, any additional shares of any class of capital stock of the Company or any of its Subsidiaries or other securities exercisable for or convertible into shares of any class of capital stock of the Company or any of its Subsidiaries (other than as part of a pro rata distribution by the Company or such Subsidiary to all holders of Common Stock), (2) sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose (in one or more 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 or such Subsidiary than the Company or such Subsidiary would be able to obtain in arm's-length negotiation with an unaffiliated third party, (3) receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee, or fees for serving as director, at rates in accordance with the Company's (or its Subsidiaries') past practices, or (4) receive the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance provided by the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company or such Subsidiary than the Company or such Subsidiary would be able to obtain in arm's-length negotiation with an unaffiliated third party, or
(C) during any such time as there is an Acquiring Person, except as there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the result Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other similar 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 such Acquiring Person) which has the effect, directly or indirectly, of increasing by more than one percent the proportionate share of the outstanding shares of any class of equity securities, or of securities exercisable for or convertible into equity securities, of the Company or any of its Subsidiaries which is directly or indirectly owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, or
(D) any Person shall become an Acquiring Person otherwise than pursuant to a transaction set forth in Section 13(a) hereofQualified Offer, then, prior and in each such case, but subject to the date on which the Company's right provisions of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided below and in Section 7(e7(f), shall, on and after the later of (I) hereofthe date of the occurrence of an event described in clause (A), shall thereafter (B), (C) or (D) of this Section 11(a)(ii), or (II) the date of the expiration of the period within which the Rights may be redeemed pursuant to Section 23 (as the same may have a been amended as provided in Section 26), have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred StockPrice, such number of shares of Common Stock as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of Units for which a Right is then exercisable and dividing that product by (y) 50 percent of the current market price per share of Common Stock (determined in accordance with Section 11(d)) on the date of the occurrence of the relevant event listed above in clause (A), (B), (C) or (D) of this subparagraph (ii); 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). The Company shall not consummate any such merger, combination, transfer or transaction referred to in any of such clauses (A), (B) and (C) unless prior thereto there shall be sufficient authorized but unissued Common Stock to permit the exercise in full of the Rights in accordance with the foregoing sentence, unless the Board of Directors has determined to issue Equivalent Stock in accordance with Section 7(a); provided, however, that in no case may the Company consummate any such merger, combination, transfer or transaction if at the time of or immediately after such transaction there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights. In the event that the Company issues Equivalent Stock upon the exercise of any Rights pursuant to the immediately preceding paragraph, then, upon any such exercise, proper provision shall be made so that the holder of a Right (except as provided in Section 7(f)) shall have the right to receive, upon such exercise at the then current Purchase Price, such number of shares or other units of Equivalent Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock Units for which such a Right is then exercisable and dividing that product by (y) 50% 50 percent of the current market price per share or other unit of the Common Equivalent Stock of the Company (determined pursuant to on substantially the same basis as is prescribed by Section 11(d)) with respect to the valuation of Common Stock) on the date of the occurrence of any one of the events relevant event listed above in clause (A), (B), (C) or (D) of this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.
(iii) . In the event that at any time the number Company should be prohibited by law, by any provision of shares its Articles of Incorporation, or by any instrument or agreement to which the Common Stock Company is a party or by which are authorized by the Company's Amended it is bound, from issuing, or should be unable under its Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not to issue, sufficient Equivalent Stock to permit the exercise in full of the all outstanding Rights in accordance with the foregoing subparagraph (ii)sentence, then, in lieu of issuing such Equivalent Stock upon such exercise, the Company shall (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise pay to each holder of a Right (the "Current Value"except as provided in Section 7(f)) over (2) the Purchase Price (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise surrender of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, Right as provided herein but without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or an amount in cash have an aggregate value for each Right equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii)Purchase Price.
(b) In the event that case the Company shall at any time after the Rights Record Date fix a record date for the issuance of rights, options rights or warrants to all holders of Preferred Common Stock or Subject Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Common Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) Subject Shares or securities convertible into Preferred Common Stock or preferred stock equivalents Subject Shares at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalentsCommon Stock) less than the current market price per share (as defined determined in accordance with Section 11(d)) hereof) per share of Preferred Stock on such record date, 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, of which the numerator of which shall be the total number of shares of the Preferred Common Stock and Subject Shares outstanding on such record date plus the number of shares of the Preferred Common Stock which the aggregate offering price of the total number of shares of Preferred Stock 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 of which the denominator of which shall be the total number of shares of the Preferred Common Stock and Subject Shares outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription or purchase price may be paid by delivery of consideration part paid, in whole or all of which shall be in part, in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 event that Company shall at any time after the Rights Record Date fix a record date for the making of a distribution to all holders on the shares of Preferred Common Stock or the Subject Shares, whether by way of a dividend, distribution, reclassification of stock, recapitalization, reorganization or partial liquidation of the Company or otherwise (and including any such distribution made in connection with a combination, 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 retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, of subscription rights or warrants (excluding those referred to in Section 11(b)), evidences of indebtedness or other assets (other than (i) hereofregular periodic cash dividends, (ii) a dividend payable in Common Stock or (iii) a distribution which is part of or is made in connection with a transaction to which Section 11(a)(ii) or Section 13 applies), 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, of which the numerator of which shall be the current market price, as defined price per share of Common Stock (determined in accordance with Section 11(d), per one one-hundredth of a share of Preferred Stock ) on such record date, less the fair market value applicable to one share of Common Stock (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the such assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable so to one one-hundredth be distributed, and of a share of Preferred Stock and which the denominator of which shall be such current market price per one one-hundredth of a share of Preferred Common 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(id) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) 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 the 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 ten (10) 30 consecutive Trading Days immediately following prior to such date; provided, however, that in the event that the current market price per share of the Common Stock is determined during the 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 such shares of Common Stock (other than the Rights) or (B) any subdivision, combination 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, Days after the ex-dividend date for such dividend or distribution or the record date for such subdivision, combination or reclassificationdistribution, then, and in each such case, the current market price shall be appropriately adjusted to take into account reflect the current market price per share of Common Stock in connection with 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Inc., Automated Quotation System ("NASDAQ") or such other system then in use, or, if ). If on any such date the shares of the Common Stock are not quoted by any such organization, the average fair market value of such shares on such date as determined in good faith by the Board of Directors of the closing bid issuer of such Common Stock shall be used. Any such determination of current market price shall be described in a statement filed with the Rights Agent. For the purpose of any computation hereunder, the "current market price" of a Unit shall be deemed to be equal to the current market price per share of Common Stock, and asked prices as furnished the "current market price" of a Subject Share shall be deemed to be equal to the current market price per share of Common Stock divided by the number of Subject Shares which comprise a professional market maker making a market in theUnit.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares shares, or fractions thereof, 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 that the Company shall at any time after the Rights Dividend Declaration Date date of this Agreement (A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in under 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital 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 Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassificationclassification. 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) Subject to Section 24 of this Agreement, in In the event that any Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date shall become an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), then proper provision shall be made so that each holder of a Right, except as provided below and in Section 7(e) hereof, shall thereafter have a the right to receive, upon exercise thereof at the then then-current Purchase Price in accordance with the terms of this Agreement, in lieu of shares the number of one one-hundredths of a share of Preferred StockStock for which such Right was otherwise then exercisable, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of such Right is then exercisable Section 11(a)(ii) Event, and (y) dividing that product by (y) 50% of the current market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) hereof) on the date of the such first occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is being hereinafter referred to as the "Adjustment Shares")) provided, provided however, that if the Purchase Price transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 12 hereof, then only the provisions of Section 12 hereof shall apply and the number of Adjustment Shares no adjustment shall be further adjusted made pursuant to this Section 11(a)(ii). The Company shall notify the Rights Agent as provided in this Agreement to reflect any events occurring after Persons who are deemed by the date Company to be Acquiring Persons or any Associates or Affiliates of such first occurrencethe Acquiring Persons and shall identify any Rights pertaining thereto. The Rights Agent shall have no responsibility to itself identify an Acquiring Person or any Associate or Affiliate of the Acquiring Person, but shall rely solely on the Company's identification.
(iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles Restated Certificate of Incorporation Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is 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 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) the Purchase Price attributable to a Right (such excess, the "Spread"), ) and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, of Preferred Stock which a majority of the Independent Directors and the Board of Directors of the Company have deemed has determined to have the same value as the shares of Common Stock (such preference sharesshares of Preferred Stock, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, foregoing having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority action of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the CompanyDirectors; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 (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 Certificate and without requiring payment of the Purchase Price, shares of the Common Stock (to the extent available) and thenand, if necessary, cash, which shares securities and/or cash have an assets that in the aggregate value are equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety one hundred twenty (90120) days after 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 period, period as it may be extended, the "Substitution Period"). To the extent that the Company determines as provided above that some action need is to be taken pursuant to the first and/or second sentences terms of this Section 11(a)(iii)) contained above, the Company (ux) shall provide, subject to section Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (vy) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such the first sentence of this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written shall deliver notice to the Rights Agent and issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and deliver notice to the Rights Agent and issue 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 the Common Stock shall be the current per share market price of Common Stock (as determined pursuant to Section 11(d) hereof) per share on the date of the first occurrence of the event described in Section 11(a)(ii) Trigger Date hereof, and the value of any "common stock equivalent' equivalents" shall be deemed to be have the same value as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) date to subscribe for or purchase Preferred Stock (or securities shares having substantially the same or more favorable rights, privileges and or preferences as the shares of Preferred Stock ("equivalent preferred stock equivalentsstock")) or securities convertible into Preferred Stock or equivalent preferred stock equivalents stock) at a price per share of Preferred Stock or per share of equivalent preferred stock equivalents (or having a conversion or exercise price per share, if a security convertible into or exercisable for Preferred Stock or equivalent preferred stock equivalentsstock) less than the "current market price price" per share of Preferred Stock (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, 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 number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or equivalent preferred stock 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 price, and the denominator of which shall be the number of shares of the Preferred Stock outstanding on such record date date, plus the number of additional shares of the Preferred Stock and 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 Rights be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of such Rights. In case such subscription price may be paid by delivery of consideration in a consideration, part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding upon the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that if 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 the event that the Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash or other assets (other than a regular periodic quarterly cash dividend out of the retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than or a dividend payable in Preferred Stock, but including any dividend payable in Common on stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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, price per share of the Preferred Stock (as defined in Section 11(d), per one one-hundredth of a share of Preferred Stock ) hereof) on such record date, date less the fair market value (as determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding upon the Rights Agent) , of the portion of the such evidences of indebtedness, cash or other assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price price) per one one-hundredth of a share of Preferred StockStock provided, however, that in no event shall the consideration to be paid upon the exercise of Rights be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of such Rights. Such adjustments adjustment 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 then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the 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 thirty (30) 30 consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)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 the 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 ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that if the current market price per share of the Common Stock is determined during the a period following the announcement by the issuer of such Common Stock of (Ax) 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 (By) any subdivision, combination or reclassification of such Common Stock, Stock and prior to the expiration of the requisite 30 thirty (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 or reclassification, then, and in each such case, the current market price per share of Common Stock shall be appropriately adjusted to take into account ex-dividend tradingreflect the current market price per share equivalent of Common Stock. 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 shares of the 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 the Common Stock are is listed or admitted to trading or, if the shares of the Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted price, 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 Stock Market ("NASDAQ") or such other system then in use, or, if on any such date the shares of the 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 of Directors. If on any such date no market maker is making a market in the Common Stock, the
Appears in 1 contract
Samples: Rights Agreement (Comtech Telecommunications Corp /De/)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number 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 Rights Dividend Declaration Date date of this Agreement (A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, 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, combination or reclassification, and the number and kind of shares of Preferred Stock or capital 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 Preferred Stock or capital stock, as the case may be, stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock (or Common Stock and/or other securities) transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), 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 section 11(a)(ii) hereof).
(ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, Person except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the later of (x) the date on which the Company's right rights of redemption pursuant to Section 23(a) expires expire, or (as y) five (5) days after the same may be extended pursuant to Section 27) with respect to an event described in this date of the first occurrence of a Section 11(a)(ii)) Event, proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Purchase Price for the number of one one-hundredths of a share of Preferred Stock for which such Right is then exercisable in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which such a Right is then exercisable and dividing that product by (y) 50% of the current market price Current Market Price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events event listed above in this subparagraph (ii) (such number of shares is are hereinafter referred to as the "Adjustment Shares"), ) provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence.
(iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended and Restated Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the 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 (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, of preferred stock which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the shares of Common Stock (such preference sharesshares of preferred stock, "common stock equivalentsCommon Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; providedPROVIDED, howeverHOWEVER, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right rights of redemption pursuant to Section 23(a) expires, as the same may be extended pursuant to Section 27 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 the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock 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 ninety (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, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (ux) shall provide, subject to section Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (vy) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will shall issue a public announcement and will shall give concurrent simultaneous written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice 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 shares of the Common Stock shall be the current market price Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' Common Stock Equivalent shall be deemed to be have the same value as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" Common Stock Equivalent under this Section 11(a)(iii).
(b) In the event that case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as the shares of Preferred Stock ("preferred stock equivalentsEquivalent Preferred Stock")) or securities convertible into the Preferred Stock or preferred stock equivalents Equivalent Preferred Stock) at a price per share of the Preferred Stock or per share of preferred stock equivalents Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into the Preferred Stock or preferred stock equivalentsEquivalent Preferred Stock) less than the current market price Current Market Price (as defined in Section 11(d) hereof) per share of the Preferred Stock or Equivalent Preferred Stock, as the case may be) on such record date, 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, of which the numerator of which shall be the number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock or Equivalent Preferred Stock 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 of which the denominator of which shall be the number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents and/or Equivalent Preferred Stock 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 shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such 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 event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, 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 cash dividend out of the retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than or a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) 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, of which the numerator of which shall be the current market price, Current Market Price per share of Preferred Stock (as defined in Section 11(d), per one one-hundredth of a share of Preferred Stock ) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and of which the denominator of which shall be such current market price Current Market Price per one one-hundredth of a share of Preferred 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 again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market priceCurrent Market Price" per share of the 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 thirty (30) 30 consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) immediately prior to such date and, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market priceCurrent Market Price" per share of the 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 ten (10) consecutive Trading Days immediately following such date; providedPROVIDED, howeverHOWEVER, that in the event that the current market price Current Market Price per share of the Common Stock is determined during the 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 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, above after the ex-dividend date for such dividend or distribution or the record date for such subdivision, combination or reclassification, then, and in each such case, the current market price shall be appropriately 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 shares of the 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 the Common Stock are listed or admitted to trading or, if the shares of the 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, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in thesub-
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Samples: Rights Agreement (First Industrial Realty Trust Inc)
