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. (a) (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii). (ii) In the event any Person shall become an Acquiring Person, each holder of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. (b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed. (c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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. (d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be
Appears in 2 contracts
Samples: Rights Agreement (Nathans Famous Inc), Rights Agreement (Nathans Famous Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-hundredths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-hundredths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Restated Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of 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 shares of Common Stock (such shares of preferred stock, "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 rights of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of 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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of the Preferred Stock or Equivalent Pre- ferred 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(dXxxxxx 00(x)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 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 re-
Appears in 2 contracts
Samples: Rights Agreement (New Century Energies Inc), Rights Agreement (New Century Energies Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Stock payable in shares of the Common Stock, (Bii) subdivide the outstanding Common Stock, (Ciii) combine the outstanding Common Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Common Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Common Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the then number of shares of Common Stock for which a Right is then exercisable, exercisable in accordance with the terms of this Agreement, Agreement such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereof) hereof on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share occurrence of the Common Stock Section 11(b) Event) (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of being referred to as the Common Stock outstanding on such record date plus the "number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertibleAdjustment Shares"). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined 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 the Common 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 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 has not been fixed.
(c) In case the event that there shall not be sufficient authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall fix thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of shares of Common Stock for which a record date for Right is then exercisable, in accordance with the making terms of this Agreement, a distribution number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company equal in the aggregate to all holders the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (including any such distribution made in connection with a consolidation "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or merger in which the Company is the continuing corporationfractions of shares) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date and/or common stock equivalents, then the Company shall take all such action as may be
Appears in 2 contracts
Samples: Rights Agreement (Tekelec), Rights Agreement (Tekelec)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares of Common 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares of Common Stock or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).paid upon the exercise of one Right
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become becomes an Acquiring Person, each holder of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, Agreement such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) hereof on the date on which any Person of the occurrence of such event; provided, however, that if the transaction that would otherwise give rise to the adjustment is also subject to the provisions of Section 13, then only the provisions of Section 13 shall become an Acquiring Personapply and no adjustment shall be made pursuant to this Section 11 (a)(ii). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or any Associate or Affiliate whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(biii) In the case event that there shall not be sufficient Common Stock issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall fix a record date either (A) take all such action as may be necessary to authorize additional Common Stock for the issuance of rights or warrants to all holders upon exercise of the Common Stock entitling them Rights or (for a period expiring within 45 calendar days after such record dateB) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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 Companyso elects, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common Stock owned by or held substitute 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per each share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beof
Appears in 2 contracts
Samples: Rights Agreement (Republic Group Inc), Rights Agreement (Republic Group Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Series AA Preferred Stock payable in shares of the Common Series AA Preferred Stock, (Bii) subdivide the outstanding Common Series AA Preferred Stock, (Ciii) combine the outstanding Common Series AA Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Series AA Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Series AA Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Series AA Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common Series AA 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 reclassification. If an , provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(iii) In the event any Person shall become becomes an Acquiring PersonPerson ("Flip-in Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-hundredths of Common a share of Series AA Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Series AA Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Series AA Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereof) hereof on the date on which of the occurrence of the Flip-in Event) (such shares being referred to as the "Adjustment Shares").
(ii) A Flip-in Event shall not be deemed to have occurred as a result of any Person becoming an Acquiring Person through a purchase of Common Stock pursuant to a tender offer made in the manner prescribed by Section 14(d) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that such tender offer shall become provide for the acquisition of all of the outstanding Common Stock held by any Person other than such Person and its Affiliates or Associates at a price and on terms determined by a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment or financial advisers, to be (A) fair to shareholders (taking into account all factors which such members of the Board deem relevant) and (B) otherwise in the best interests of the Company and its shareholders, employees, customers and communities in which the Company does business.
(c) In the event that there shall not be sufficient shares of Common Stock authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (b), the Company shall: (i) 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 being hereinafter referred to as the "Spread"), and (ii) with respect to each Right, make adequate provision to substitute for such unavailable Adjustment Shares either (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company, including without limitation Series AA Preferred Stock, (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, having, together with the Adjustment Shares issued upon exercise of such Right, an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a reputable investment banking firm selected by the Board of Directors of the Company; provided, however, if, within 30 days following the date of the occurrence of a Flip-in Event, the Company shall have not made adequate provision to deliver value pursuant to clause (ii) above, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Stock (to the extent shares of such Common Stock are available) and then, if necessary, cash or Series AA Preferred Stock, 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 Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 120 days following the date of the occurrence of the Flip-in Event in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, hereinafter referred to as the "Substitution Period"). To the extent that the Company determines that action needs to be taken pursuant to the first and/or second sentences of this Section 11(c), the Company (y) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (z) 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 that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall notify the Rights Agent whenever it makes a public announcement pursuant to be afforded by this Section 11(c) and give the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate Agent a copy of such Acquiring Person) announcement. For purposes of this Section 11(c), the value of the Common Stock shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued the current per share market price (as determined pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to 11(f) hereof) per share of Common Stock on the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon date of the transfer occurrence of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledFlip-in Event.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Series AA Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Series AA Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Series AA Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into the Common Series AA Preferred Stock or Equivalent Preferred Stock) , at a price per share of the Common Series AA Preferred Stock (or per share of Equivalent Preferred Stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) per share of Series AA 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 the numerator shall be the number of shares of the Common Series AA Preferred Stock outstanding on such record date plus the number of shares of the Common Series AA Preferred Stock which the aggregate offering price of the total number of shares of the Common Series AA Preferred Stock so or Equivalent Preferred Stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Series AA Preferred Stock outstanding on such record date plus the number of additional shares of the Common Series AA Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common Series AA 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Series AA Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Series AA Preferred Stock, but including any dividend payable in stock other than Series AA Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per Current Market Price for one share of the Common Series AA Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Series AA Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per Current Market Price for one share of the Common Series AA 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 20 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall bebut not including such
Appears in 2 contracts
Samples: Rights Agreement (Trico Bancshares /), Rights Agreement (Trico Bancshares /)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Shares 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event that any Person shall should become an Acquiring Person, each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person (including, without limitation, any Rights issued in respect of any Common Shares that are beneficially owned by any Acquiring Person at the time such Acquiring Person becomes an Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or securities convertible into the Common Stock) Shares at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Shares for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (A) a dividend or distribution on such Common Shares payable in shares of such Common Shares or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. 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 on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of business or, if the Common Shares are not listed or admitted to trading on any computation in Section 11(a)(ii) and Section 13national securities exchange, a Business Day. If the Common Shares are not publicly held or so listed or traded, "current per share market price" pershall mean the fair value per share as determined in good faith by the Board of Directors of the Company, or "value" of a, share of Common Stock on any date whose determination shall bebe described in a statement filed with the Rights Agent.
Appears in 2 contracts
Samples: Rights Agreement (Citizens Holding Co /MS/), Rights Agreement (Britton & Koontz Capital 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-hundredths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-hundredths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Restated Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of 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 shares of Common Stock (such shares of preferred stock, "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 rights of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of 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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authoriza- tion 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 shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 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 admit-
Appears in 2 contracts
Samples: Rights Agreement (Choice Hotels International Inc /De), Rights Agreement (Choice Hotels International Inc /De)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event that any Person shall become an Acquiring Person, each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying two times the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's ’s Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event (such number of shares, the “Adjustment Shares”). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not not, except as permitted by Section 24 or Section 27, take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event”), any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as “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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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, Common Shares (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 Common Shares might 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or securities convertible into the Common Stock) Shares at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares or any other security (a Common Share or other security, a “Security” for the purpose of this Section 11(d)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each Trading Day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any date shall benational 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 Quotations System (“Nasdaq”) or such other system then in use, or, if on
Appears in 2 contracts
Samples: Rights Agreement (Briggs & Stratton Corp), Rights Agreement (Briggs & Stratton Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Series AA Preferred Stock payable in shares of the Common Series AA Preferred Stock, (Bii) subdivide the outstanding Common Series AA Preferred Stock, (Ciii) combine the outstanding Common Series AA Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Series AA Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Series AA Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Series AA Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common Series AA 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 reclassification. If an , provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(iii) In the event any Person shall become becomes an Acquiring PersonPerson ("Flip-in Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-hundredths of Common a share of Series AA Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Series AA Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one- hundredths of Common a share of Series AA Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereof) hereof on the date on which of the occurrence of the Flip-in Event) (such shares being referred to as the "Adjustment Shares").
(ii) A Flip-in Event shall not be deemed to have occurred as a result of any Person becoming an Acquiring Person through a purchase of Common Stock pursuant to a tender offer made in the manner prescribed by Section 14(d) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that such tender offer shall become provide for the acquisition of all of the outstanding Common Stock held by any Person other than such Person and its Affiliates or Associates at a price and on terms determined by a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment or financial advisers, to be (A) fair to shareholders (taking into account all factors which such members of the Board deem relevant) and (B) otherwise in the best interests of the Company and its shareholders, employees, customers and communities in which the Company does business.
(c) In the event that there shall not be sufficient shares of Common Stock authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (b), the Company shall: (i) 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 being hereinafter referred to as the "Spread"), and (ii) with respect to each Right, make adequate provision to substitute for such unavailable Adjustment Shares either (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company, including without limitation Series AA Preferred Stock, (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, having, together with the Adjustment Shares issued upon exercise of such Right, an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a reputable investment banking firm selected by the Board of Directors of the Company; provided, however, if, within 30 days following the date of the occurrence of a Flip-in Event, the Company shall have not made adequate provision to deliver value pursuant to clause (ii) above, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Stock (to the extent shares of such Common Stock are available) and then, if necessary, cash or Series AA Preferred Stock, 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 Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 120 days following the date of the occurrence of the Flip-in Event in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, hereinafter referred to as the "Substitution Period"). To the extent that the Company determines that action needs to be taken pursuant to the first and/or second sentences of this Section 11(c), the Company (y) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (z) 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 that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended to be afforded by exercisability of the RightsRights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. Notwithstanding For purposes of this Section 11(c), the foregoing or anything in this Agreement to value of the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) Common Stock shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued the current per share market price (as determined pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to 11(f) hereof) per share of Common Stock on the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon date of the transfer occurrence of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledFlip-in Event.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Series AA Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Series AA Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Series AA Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into the Common Series AA Preferred Stock or Equivalent Preferred Stock) , at a price per share of the Common Series AA Preferred Stock (or per share of Equivalent Preferred Stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) per share of Series AA 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 the numerator shall be the number of shares of the Common Series AA Preferred Stock outstanding on such record date plus the number of shares of the Common Series AA Preferred Stock which the aggregate offering price of the total number of shares of the Common Series AA Preferred Stock so or Equivalent Preferred Stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Series AA Preferred Stock outstanding on such record date plus the number of additional shares of the Common Series AA Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common Series AA 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Series AA Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Series AA Preferred Stock, but including any dividend payable in stock other than Series AA Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per Current Market Price for one share of the Common Series AA Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Series AA Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per Current Market Price for one share of the Common Series AA 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 20 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 20 Trading Days after but not including the ex- dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") National Market System, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange a day on which the Nasdaq National Market System is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, a Business Day. If the Security is not publicly held or not so listed or traded, "current market price" shall mean the fair value as determined in good faith by a majority of the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
Appears in 2 contracts
Samples: Rights Agreement (Ribozyme Pharmaceuticals Inc), Rights Agreement (Ribozyme Pharmaceuticals Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 23 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring Person, then, prior to the later of (x) the date on which the Company's rights of redemption pursuant to Section 22(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-thousandths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-thousandths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Restated Certificate of Incorporation but not outstanding or reserved for issu- ance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of shares, of preferred stock which a majority of the Board of Directors of the Company have deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 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 rights of redemption pursuant to Section 22(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authoriza- tion 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 shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to but not including such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 but not including such date; provided, however, that in the event that the Current Market Price per share of 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 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
Appears in 2 contracts
Samples: Rights Agreement (Trans World Entertainment Corp), Rights Agreement (Trans World Entertainment 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. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on or distribution with respect to the Common Preferred Stock payable in shares of the Common Stockcapital stock, securities or other assets, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Stock, capital stock stock, securities or other assets, 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 capital stock stock, securities or other assets which, if such Right had been exercised immediately prior to such date and at a time when the Common Preferred Stock 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, distribution, subdivision, combination or reclassification. .
(b) If an event occurs which would require as a result of an adjustment under both made pursuant to Section 11(a)(i) and Section 11(a)(ii11(a), the holder of any Right thereafter exercised shall become entitled to receive any shares of capital stock other than shares of Preferred Stock, thereafter the number of such other shares so receivable upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment provided for from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained in this Section 11(a)(i) shall be in addition to11, and the provisions of Sections 7, 9, 10, and 13 with respect to the Preferred Stock shall be made prior apply on like terms to any such other shares.
(c) All Rights originally issued by the Company subsequent to any adjustment required pursuant made to Section 11(a)(ii)the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of one one-thousandths of a share of Preferred Stock purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(iid) In The Company may elect on or after the event date of any Person shall become an Acquiring Person, each holder adjustment of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by to adjust the number of Rights, in substitution for any adjustment in the number of shares of Common Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be exercisable for the number of shares of Preferred Stock for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after the adjustment of the Purchase Price. The Company shall make a public announcement and shall give simultaneous written notice to the Rights Agent of its election to adjust the number of Rights, indicating the record date for the adjustment to be made. This record date may be the date on which the Purchase Price is then exercisableadjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(d), the Company shall, as promptly as practicable, cause to be distributed to holders of Right Certificates on such record date Right Certificates evidencing, subject to Section 13, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in accordance with substitution and replacement for the terms Right Certificates held by such holders prior to the date of this Agreementadjustment, and upon surrender thereof, if required by the Company, new Right Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Right Certificates on the record date specified in the public announcement.
(e) Irrespective of any adjustment or change in the Purchase Price or the number of shares of Preferred Stock issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price per share and the number of shares which were expressed in the initial Right Certificates issued hereunder.
(f) Before taking any action that would cause an adjustment reducing the Purchase Price below one one-thousandth of the then stated value, if any, of a share of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable such number of one one-thousandths of a share of such Preferred Stock at such adjusted Purchase Price.
(g) In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the shares of Preferred Stock and other capital stock or securities or assets of the Company, if any, issuable upon such exercise over and above the shares of Preferred Stock and other capital stock or securities or assets of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due xxxx or other appropriate instrument evidencing such holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment.
(h) Anything in this Agreement to the contrary notwithstanding, in the event that the Company shall at any time after the Record Date and prior to the Distribution Date (i) declare a dividend on the outstanding shares of (x) Common Stock payable in shares of Common Stock, (y) Series A Preferred Stock payable in shares of Series A Preferred Stock or (z) Series B Preferred Stock payable in shares of Series B Preferred Stock, (ii) subdivide the Company outstanding shares of Common Stock, Series A Preferred Stock or Series B Preferred Stock, or (iii) combine the outstanding shares of Common Stock, Series A Preferred Stock or Series B Preferred Stock into a smaller number of shares, the number of Rights associated with each share of Common Stock, Series A Preferred Stock or Series B Preferred Stock, as applicable, then outstanding, or issued or delivered thereafter but prior to the Distribution Date, shall be proportionately adjusted so that the number of Rights thereafter associated with each such share following any such event shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which Rights associated with each such share immediately prior to such event by a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Pricefraction, the then current per share market price numerator of which shall be the total number of such shares outstanding immediately prior to the occurrence of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights denominator of which shall then be outstanding, the Company shall not take any action which would eliminate or diminish total number of such shares outstanding immediately following the benefits intended to be afforded by the Rights. occurrence of such event.
(i) Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant prior to the preceding sentence or Distribution Date, the Company may, in lieu of making any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant adjustment to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring PersonPurchase Price, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding eligible for purchase on such record date plus exercise of each Right or the number of shares of the Common Stock Rights outstanding, which the aggregate offering price of the total number of shares of the Common Stock so to adjustment would otherwise be offered (and/or the aggregate initial conversion price of the convertible securities so to be offeredrequired by Section 11(a) would purchase at or 11(d), make such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock to be offered for subscription other equitable adjustment or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be adjustments thereto as determined in good faith by the Board of Directors of the Company, (whose determination shall be described conclusive) deems appropriate in a statement filed the circumstances and not inconsistent with the Rights Agent. Shares objectives of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 adopting this Agreement and such subscription rights or warrants applicable to one share of the Common Stock and of which the denominator shall be such current market price per share of the 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 fixedSections.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be
Appears in 2 contracts
Samples: Rights Agreement (Anchor Glass Container Corp /New), Rights Agreement (Anchor Glass Container Corp /New)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 25 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson except as the result of a transaction set forth in Section 14(a) hereof, then, prior to the later of (x) the date on which the Company's rights of redemption pursuant to Section 24(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-hundredths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-hundredths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of 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 shares of Common Stock (such shares of preferred stock, "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 rights of redemption pursuant to Section 24(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 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
Appears in 2 contracts
Samples: Rights Agreement (Manor Care Inc/New), Rights Agreement (Manor Care Inc/New)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a 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 capital stock issuable on such date, shall be proportionately adjusted (without duplicating the effect of Section 11(n)) so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii)shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value, if any, of 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)shares of capital stock of the Corporation issuable upon exercise of one Right.
(ii) In the event any Person shall become an Acquiring Person, each holder of a Right shall thereafter have a right Subject to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms Section 24 of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In in the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by (A) any Acquiring Person (or any Associate or Affiliate of such any Acquiring Person) shall be void and , at any holder of such Rights shall thereafter have no right to exercise such Rights under any provision time after the date of this Agreement. No Right Certificate , directly or indirectly, shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b1) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible merge into the Common Stock) at a price per share of Corporation or otherwise combine with the Common Stock (or having a conversion price per share of Corporation and the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 Corporation shall be the number continuing or surviving corporation of such merger or combination (other than in a transaction subject to Section 13 hereof), (2) merge or otherwise combine with any Subsidiary of the Corporation, (3) in one or more transactions (other than in connection with the exercise of Rights or the exercise or conversion of securities exercisable or convertible into capital stock of the Corporation or any of its Subsidiaries) transfer any assets to the Corporation or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of capital stock of the Common Stock outstanding on such record date plus the number Corporation or any of its Subsidiaries or for securities exercisable for or convertible into shares of the Common Stock which the aggregate offering price any class of capital stock of the total number Corporation or of shares any of its Subsidiaries, or otherwise obtain from the Common Stock so to be offered (and/or the aggregate initial conversion price Corporation or any of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of its Subsidiaries, with or without consideration, any additional shares of any class of capital stock of the Common Stock to be offered Corporation or any of its Subsidiaries or securities exercisable for subscription or purchase convertible into shares of any class of capital stock of the Corporation or any of its Subsidiaries (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined 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 the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making part of a pro rata distribution to all holders of such shares of any class of capital stock of the Common Stock Corporation, or any of its Subsidiaries), (4) sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose (in one or more transactions) of any assets (including securities) to, from, with or of, as the case may be, the Corporation or any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets its Subsidiaries (other than in a transaction subject to Section 13 hereof), (5) receive any compensation from the Corporation or any of its Subsidiaries other than compensation as a director or for full-time employment as a regular periodic cash dividend employee, in either case, at rates in accordance with the Corporation's (or its Subsidiaries') past practices, or (6) receive the benefit, directly or indirectly (except proportionately as a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)shareholder), 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 fractionof any loans, of which the numerator shall be the current market price per share of the Common Stock (as defined in Section 11(d)) on such record dateadvances, less the fair market value (as determined in good faith guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Board Corporation or any of Directors of the Companyits Subsidiaries, 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beor
Appears in 2 contracts
Samples: Rights Agreement (Union Acceptance Corp), Rights Agreement (Union Acceptance 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. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on or distribution with respect to the Common Preferred Stock payable in shares of the Common Stockcapital stock, securities or other assets, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Stock, capital stock stock, securities or other assets, 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 capital stock stock, securities or other assets which, if such Right had been exercised immediately prior to such date and at a time when the Common Preferred Stock 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, distribution, subdivision, combination or reclassification. .
(b) If an event occurs which would require as a result of an adjustment under both made pursuant to Section 11(a)(i) and Section 11(a)(ii11(a), the holder of any Right thereafter exercised shall become entitled to receive any shares of capital stock other than shares of Preferred Stock, thereafter the number of such other shares so receivable upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment provided for from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained in this Section 11(a)(i11, and the provisions of Sections 7, 9, 10, and 13 with respect to the Preferred Stock shall apply on like terms to any such other shares.
(c) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of one one-thousandths of a share of Preferred Stock purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(d) The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in substitution for any adjustment in the number of shares of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be exercisable for the number of shares of Preferred Stock for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest ten-thousandth) obtained by dividing the Purchase Price in addition toeffect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after the adjustment of the Purchase Price. The Company shall make a public announcement and shall give simultaneous written notice to the Rights Agent of its election to adjust the number of Rights, indicat- ing the record date for the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(d), the Company shall, as promptly as practicable, cause to be distributed to holders of Right Certificates on such record date Right Certificates evidencing, subject to Section 13, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Right Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be made prior to any adjustment required pursuant to Section 11(a)(ii)registered in the names of the holders of record of Right Certificates on the record date specified in the public announcement.
(e) Irrespective of any adjustment or change in the Purchase Price or the number of shares of Preferred Stock issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price per share and the number of shares which were expressed in the initial Right Certificates issued hereunder.
(f) Before taking any action that would cause an adjustment reducing the Purchase Price below one one-thousandth of the then stated value, if any, of a share of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable such number of one one-thousandths of a share of such Preferred Stock at such adjusted Purchase Price.
(g) In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the shares of Preferred Stock and other capital stock or securities or assets of the Company, if any, issuable upon such exercise over and above the shares of Preferred Stock and other capital stock or securities or assets of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due bilx xx other appropriate instrument evidencing such holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment.
(h) Anything in this Agreement to the contrary notwithstanding, in the event that the Company shall at any time after the Record Date and prior to the Distribution Date (i) declare a dividend on the outstanding shares of Common Stock payable in shares of Common Stock, (ii) In subdivide the event any Person shall become an Acquiring Personoutstanding shares of Common Stock, or (iii) combine the outstanding shares of Common Stock into a smaller number of shares, the number of Rights associated with each holder share of a Right shall Common Stock then outstanding, or issued or delivered thereafter have a right to receive, upon exercise thereof at a price equal but prior to the then current Purchase Price multiplied Distribution Date, shall be proportionately adjusted so that the number of Rights thereafter associated with each share of Common Stock following any such event shall equal the result obtained by multiplying the number of Rights associated with each share of Common Stock immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock for outstanding immediately prior to the occurrence of the event and the denominator of which a Right is then exercisable, in accordance with shall be the terms of this Agreement, such total number of shares of Common Stock outstanding immediately following the occurrence of the Company as shall equal the result obtained by such event.
(xi) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant prior to the preceding sentence or Distribution Date, the Company may, in lieu of making any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant adjustment to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring PersonPurchase Price, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding eligible for purchase on such record date plus exercise of each Right or the number of shares of the Common Stock Rights outstanding, which the aggregate offering price of the total number of shares of the Common Stock so to adjustment would otherwise be offered (and/or the aggregate initial conversion price of the convertible securities so to be offeredrequired by Section 11(a) would purchase at or 11(d), make such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock to be offered for subscription other equitable adjustment or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be adjustments thereto as determined in good faith by the Board of Directors of the Company, (whose determination shall be described conclusive) deems appropriate in a statement filed the circumstances and not inconsistent with the Rights Agent. Shares objectives of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 adopting this Agreement and such subscription rights or warrants applicable to one share of the Common Stock and of which the denominator shall be such current market price per share of the 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 fixedSections.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be
Appears in 2 contracts
Samples: Rights Agreement (Anchor Glass Container Corp /New), Rights Agreement (Anchor Glass Container Corp /New)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Stock payable in shares of the Common Stock, (Bii) subdivide the outstanding Common Stock, (Ciii) combine the outstanding Common Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Common Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Common Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the then number of shares of Common Stock for which a Right is then exercisable, exercisable in accordance with the terms of this Agreement, Agreement such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined 13 pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities having the same or more favorable rights, privileges and preferences as the Common Stock ("equivalent common stock")) or securities convertible into the Common Stock) Stock or equivalent common stock, at a price per share of the Common Stock (or per share of equivalent common stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the 14 total number of shares of the Common Stock so or equivalent common stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or equivalent common 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Stock, but including any dividend payable in stock other than Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Common Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the 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.
(df) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" perof any security (a "Security" for purposes of this Section 11(f)), or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (i) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (ii) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price, or "value" regular way, or, in case no such sale takes place on such day, the average of a, share of Common Stock on any date shall bethe 15
Appears in 2 contracts
Samples: Rights Agreement (Brown Group Inc), Rights Agreement (Brown Group Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 Common Stock or capital stock 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 receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock (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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date, an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price for a full share of Common Stock by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event described above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price orand 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) If (x) the number of shares of Common Stock which are authorized by the Company's certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), or (y) any regulatory approvals necessary for the issuance of such Common Stock have not been obtained by the Company, or (z) the issuance of Common Stock of the Company shall not then be permitted under the Company's certificate of incorporation or any applicable law or administrative or judicial regulation or order, 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, but subject to Section 9 hereof and, if less than and to the extent required, to the receipt by the Company of any necessary regulatory approvals, 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) other equity securities of the then current per share market price Company (including, without limitation, shares of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's rights of redemption pursuant to Section 23(a) expire (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available and subject to receipt by the Company of any necessary regulatory approvals) 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 Common Stock could be authorized for issuance upon exercise in full of the Rights and that any necessary regulatory approvals for such issuance could be obtained, 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 stockholder approval for the authorization of such additional shares and/or regulatory approvals for the issuance 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 and/or additional regulatory approvals obtained pursuant to the first and/or second sentences of this subparagraph (iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to obtain any required regulatory approvals and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall 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 subparagraph (iii), the value of the Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11 (a) (ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to be the same as the value of Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this subparagraph (iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities having substantially the same rights, privileges and preferences as the shares of Common Stock ("Equivalent Common Stock") or convertible into the Common Stock or Equivalent Common Stock) at a price per share of the Common Stock or Equivalent Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Stock or Equivalent Common Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of Common Stock or Equivalent Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock or Equivalent Common Stock which the aggregate offering price of the total number of shares of the Common Stock or Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or Equivalent Common 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price Current Market Price per share of the 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.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such datedate and, and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, Current Market Price per share of Common Stock on any date shall bebe 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 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, 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 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 Common Stock selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date shall be as determined by the Board of Directors of the Company upon the advice of a nationally-recognized, independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in the State of New York are not authorized or obligated by law or executive order to close. If the Common Stock is not publicly held or not so listed or traded, "Current Market Price" per share shall mean the fair value per share as determined by the Board of Directors of the Company upon the advice of a nationally-recognized, independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
Appears in 2 contracts
Samples: Rights Agreement (National Fuel Gas Co), Rights Agreement (National Fuel Gas Co)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare authorize a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 capital stock Preferred Stock or 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 capital 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 ad- justment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-hundredths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-hundredths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's charter but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of 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 shares of Common Stock (such shares of preferred stock, "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 rights of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of 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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 and shall be binding on the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 after the ex-dividend date for such dividend or distribution or the record date for such sub-
Appears in 2 contracts
Samples: Rights Agreement (Trinet Corporate Realty Trust Inc), Rights Agreement (Trinet Corporate Realty Trust Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-hundredths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-hundredths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Restated Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of 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 shares of Common Stock (such shares of preferred stock, "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 rights of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of 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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authoriza- tion 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 shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 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 admit-
Appears in 2 contracts
Samples: Rights Agreement (Sunburst Hospitality Corp), Rights Agreement (Sunburst Hospitality Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares covered Preferred Stock purchaseable by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a)9.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares Preferred Stock or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof9(a), the Purchase Price in effect at the time of the record date for such dividend or as of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become becomes an Acquiring Person, each holder of a Right 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's ’s Common Stock (determined pursuant to Section 11(d9(d) hereof) on as of the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person, including, without limitation, any Rights issued in respect of any Common Stock that are beneficially owned by any Acquiring Person at the time such Acquiring Person becomes an Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision provisions of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be are void pursuant to the preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient Common Stock issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall take all such action as may be necessary to authorize additional Common Stock for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Stock, the Company shall substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of Preferred Stock or fraction thereof such that the current per share market price of one Preferred Share multiplied by such number or fraction is equal to the current per share market price of one Common Share as of the date of issuance of such Preferred Stock or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or shares having the same rights, privileges and preferences as the Preferred Stock; (“Equivalent Preferred Stock”) or securities convertible into the Common Stock) Preferred Stock or Equivalent Preferred Stock at a price per share of the Common Stock Preferred Share or Equivalent Preferred Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the then current per share market price per share of the Common Preferred Stock (as defined in Section 11(d9(d)) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock and/or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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); 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 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. Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)9(1) 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 the numerator shall be the then current per share market price per share of the Common Preferred Stock (as defined in Section 11(d)) on after 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common Preferred Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share of the Common Stock any security (a “Security”) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, and for however, that in the purpose event that the current per share market price of any computation the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in Section 11(a)(iishares of such Security or securities convertible into such shares or (B) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beany
Appears in 2 contracts
Samples: Rights Agreement (GTJ REIT, Inc.), Rights Agreement (GTJ REIT, Inc.)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 Section 11(a)(ithis Section
(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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-thousandths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-thousandths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of shares, of preferred stock which a majority of the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 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 (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For Except as otherwise provided herein, for the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter definedhereafter defined in this paragraph (d)) immediately prior to to, but not including, such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 after the ex-dividend date for such dividend or
Appears in 2 contracts
Samples: Rights Agreement (Anadigics Inc), Rights Agreement (Anadigics Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares covered by each Common Shares or interests therein that the holder of a Right Certificate is entitled to purchase on the exercise of the Rights evidenced thereby and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of at the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock or interests therein issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock or interests therein which, if such Right had been exercised immediately prior to such date and at a time when the Common 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)) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii)) hereof.
(ii) In Subject to Sections 23 and 24 of this Agreement, in the event any Person shall become an Acquiring Person, proper provision shall be made so that each holder of a Right shall thereafter have a right to receive, upon exercise thereof in accordance with Section 7 hereof at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's ’s Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any such Person shall become became an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, from and after the time any Person becomes an Acquiring Person, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void without any further action by the Company, the Rights Agent, the Acquiring Person or any other Person, and any holder of such Rights shall thereafter have no rights whatsoever with respect to such Rights, whether under this Agreement (including the right to exercise such Rights under any provision of this Agreement) or otherwise. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or by any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or to any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence shall be cancelledcanceled.
(iii) In lieu of issuing Common Shares in accordance with Section 11(a)(ii) hereof, the Company may, if the Board of Directors determines that such action is necessary or appropriate, elect to issue or pay, upon the exercise of the Rights, cash, property, shares of preferred stock, notes, debentures or other securities, or any combination thereof (collectively “substitute consideration”), having an aggregate value equal to the value of the Common Shares which otherwise would have been issuable pursuant to Section 11(a)(ii), which value of such substitute consideration shall be determined by a nationally recognized investment banking firm selected by the Board of Directors; provided, however, that, except as provided in the second and third sentences of subparagraph (ii) of this paragraph (a), each holder of a Right must receive the same consideration upon the exercise of a Right. For purposes of this subparagraph (iii) the value of Common Shares shall be as determined pursuant to Section 11(d) hereof and the value of any preferred stock or other securities comprising all or part of the substitute consideration which the Board of Directors determines to be the substantial equivalent of Common Shares shall be deemed to have the same value as the Common Shares.
(iv) Subject to subparagraph (iii) of this paragraph (a), in the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with subparagraph (ii) of this paragraph (a), the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights or, if unable to do so, shall take action permitted by subparagraph (iii) of this paragraph (a) in respect of substitute consideration in order to satisfy fully its obligations to a holder of Rights exercising such Rights as contemplated hereby.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges and preferences as the Common Stock Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Shares or equivalent preferred shares at a price per Common Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of Common Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional Common Shares and/or equivalent preferred shares of the Common 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 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 reasonably detailed statement filed with the Rights Agent. Common Shares of the Common 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 adjustments shall be made successively whenever such a record date is fixed; and in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess paid out of 125% of the rate of the last cash dividend theretofore paid earnings or retained earnings or a dividend payable in Common StockShares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) 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 reasonably detailed 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares. 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to to, but not including, such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to, but not including, the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security taking into account ex-dividend trading. The closing price for each day shall be the last sale price" per, 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 "value" of aadmitted to trading on the Nasdaq National Market or, share of Common Stock if the Security is not listed or admitted to trading on the Nasdaq National Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any date shall benational
Appears in 2 contracts
Samples: Rights Agreement (Internet America Inc), Rights Agreement (Internet America Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-hundredths of Common a share of Preferred Stock for which a such Right is then exercisable, exercisable in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Class A Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of the Class A Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Third Restated Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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) Class A Common Stock or other equity securities of the then current per share market price Company (including, without limitation, shares, or units of 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 shares of Class A Common Stock (such shares of preferred stock, "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 rights of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Class A 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 Class A 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 nu- merator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common Preferred Stock. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution distri- bution 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 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
Appears in 2 contracts
Samples: Rights Agreement (Lexmark International Group Inc), Rights Agreement (Lexmark International Group Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson except as the result of a transaction set forth in Section 13(a) hereof (any such event, a "Section 11(a)(ii) Event"), then, prior to the later of (x) the date on which the Company's rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-thousandths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-thousandths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 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 (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall bepurposes of
Appears in 2 contracts
Samples: Rights Agreement (Lydall Inc /De/), Rights Agreement (Lydall Inc /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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson except as the result of a transaction set forth in Section 13(a) hereof (any such event, a "Section 11(a)(ii) Event"), then, prior to the later of (x) the date on which the Company's rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-thousandths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-thousandths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not suffi- cient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 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 (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pur- suant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to and not including such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe deemed to be the average of the daily closing prices per share of such Common Stock for the ten
Appears in 2 contracts
Samples: Rights Agreement (Engelhard Corp), Rights Agreement (Engelhard 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. (a)
(i) In Anything in this Agreement to the contrary notwithstanding, in the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares (by reverse stock split or otherwise) or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were opendate, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to the following paragraph of this subparagraph (ii) and to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, each holder of a Right 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 shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any such Person shall become became an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which that would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such an event, any Rights that are or were acquired or beneficially owned by any an Acquiring Person (or any Associate or Affiliate of such Acquiring Person) on or after the earlier of (x) the date of such event and (y) the Distribution Date shall be null and void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof shall be cancelledcanceled.
(iii) In the event that the number of Common Shares which are authorized by the Company's certificate of incorporation and not outstanding or subscribed for, or reserved or otherwise committed for issuance for purposes other than upon exercise of the Rights, are not sufficient to permit the holder of each Right to purchase the number of Common Shares to which he would be entitled upon the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of paragraph (a) of this Section 11, or should the Board of Directors so elect, the Company shall: (A) determine the excess of (1) the value of the Common Shares issuable upon the exercise of a Right (calculated as provided in the last sentence of this subparagraph (iii)) pursuant to Section 11(a)(ii) hereof (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 such Common Shares, upon payment of the applicable Purchase Price, any one or more of the following having an aggregate value determined by the Board of Directors to be equal to the Current Value: (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has determined to have the same value as Common Shares (such shares or units of shares of preferred stock, "common stock equivalents")), (4) debt securities of the Company, or (5) other assets; 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 first occurrence of an event triggering the rights to purchase Common Shares described in Section 11(a)(ii) (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, Common Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares 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 stockholder 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 (x) shall provide, subject to Section 7(e) hereof and the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall make a public announcement, and shall deliver to the Rights Agent a statement, stating that the exercisability of the Rights has been temporarily suspended. At such time as the suspension is no longer in effect, the Company shall make another public announcement, and deliver to the Rights Agent a statement, so stating. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d)(i) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any common stock equivalent shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares entitled to the Common Stock same rights, privileges and preferences as the Preferred Shares ("equivalent preferred shares")) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) on such record date, the Purchase Price to be in effect after such record date shall be determined adjusted by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 written statement filed with the Rights Agent. Preferred Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall shall, at any time after the date of this Agreement, fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 written 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after but not including the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, or "value" regular way, or, in case no such sale takes place on such day, the average of a, share of Common Stock on any date shall bethe closing bid and asked
Appears in 1 contract
Samples: Rights Agreement (Bill Barrett 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. (a)
(i) In Anything in this Agreement to the contrary notwithstanding, in the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares (by reverse stock split or otherwise) into a smaller number of shares Preferred Shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock 11 Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when date, the Common Stock transfer books of the Company were open, he holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to the following paragraph of this Section 11(a)(ii) and to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, each holder of a Right 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 shares one one-hundredths (0.01) of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths (0.01) of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, fifty percent (50%) of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any such Person shall become became an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which that would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such an event, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) on or after the earlier of (x) the date of such event and (y) the Distribution Date shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof shall be cancelledcanceled.
(iii) In lieu of issuing Common Shares in accordance with Section 11(a)(ii) hereof, the Company may, if the Board 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 Common Shares which are authorized by the Company's certificate of incorporation but not outstanding or subscribed for or reserved or otherwise committed for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the holder of each Right to purchase the number of Common Shares to which the holder would be entitled upon the exercise in full of the Rights, or if any necessary regulatory approval of such issuance has not been obtained by the Company, the Company shall: (A) determine the excess of (1) the value of the Common Shares issuable upon the exercise of a Right (calculated as provided in the last sentence of this Section 11(a)(iii)) pursuant to Section 11(a)(ii) hereof (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 such Common Shares, upon payment of the applicable Purchase Price, any one or more of the following having an aggregate value determined by the Board to be equal to the Current Value: (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board has determined to have the same value as Common Shares (such shares of preferred stock, "common stock equivalents")), (4) debt securities of the Company, or (5) other assets; 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 first occurrence of an event triggering the rights to purchase Common Shares described in Section 11(a)(ii) (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, Common Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional Common Shares 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 stockholder 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 (x) shall provide, subject to Section 7(e) hereof and the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall make a public announcement, and shall deliver to the Rights Agent a statement, stating that the exercisability of the Rights has been temporarily suspended. At such time as the suspension is no longer in effect, the Company shall make another public announcement, and deliver to the Rights Agent a statement, so stating. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d)(i) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any common stock equivalent shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall shall, at any time after the date of this Agreement, fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them such holders (for a period expiring within 45 forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares ("equivalent preferred shares")) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) on such record date, the Purchase Price to be in effect after such record date shall be determined adjusted by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date date, plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent. Preferred Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall shall, at any time after the date of this Agreement, fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beprior
Appears in 1 contract
Samples: Rights Agreement (Nn Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"Adjustment Shares"). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a "Section 11(a)(ii) Event"), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as "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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent" shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to and not including such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any date shall benational securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the
Appears in 1 contract
Samples: Rights Agreement (Wicor Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section section 11(a)(ii).
(ii) In Subject to Section 23 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring Person, then, prior to the later of (x) the date on which the Company's rights of redemption pursuant to Section 22(a) expire, or (y) ten (10) Business Days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-thousandths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-thousandths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the "Adjustment Shares") provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's Amended and Restated Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 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 rights of redemption pursuant to Section 22(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock") or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market priceCurrent Market Price" per, or "value" of a, per share of Common Stock on any date shall bebe 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 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 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 Common Stock selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date shall be as determined in good faith by an independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of the Common Stock are not listed or admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in the State of New York are not authorized or obligated by law or executive order to close. If the Common Stock is not publicly held or not so listed or traded, "Current Market Price" per share shall mean the fair value per share as determined in good faith by an independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
Appears in 1 contract
Samples: Rights Agreement (Trimas Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"Adjustment Shares"). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a "Section 11(a)(ii) Event"), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(biii) In the case event that there shall not be sufficient Common Shares of the Company shall fix a record date issued but not outstanding or authorized but unissued (and not reserved for the issuance of rights or warrants to all holders for purposes other than upon exercise of the Common Stock entitling them (for a period expiring within 45 calendar days after such record dateRights) to subscribe for or purchase permit the Common Stock (or securities convertible into the Common Stock) at a price per share exercise in full of the Common Stock Rights in accordance with the foregoing subparagraph (or having a conversion price per share ii), the Company shall: (A) determine the excess of (1) the value of the Common Stock, if Adjustment Shares issuable upon the exercise of a security is convertible into Right (the Common Stock"Current Value") less than the current market price per share of the Common Stock over (as defined in Section 11(d)2) on such record date, the Purchase Price payable with respect to be such Right (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in effect after the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares (such record date shall be shares of preferred stock, hereinafter referred to as "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 multiplying the Purchase Price in effect immediately prior to such record date by a fraction, Board of which the numerator shall be the number of shares Directors of the Common Stock outstanding on such record date plus Company based upon the number advice of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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 nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common Stock owned by or held for the account of however, if the Company shall not be deemed outstanding have made adequate provision to substitute for the purpose Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in Section 11(a)(ii) Event (the event that such rights or warrants are not so issued"Section 11(a)(ii) Trigger Date"), the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date has not been fixed.
(c) In case the Company shall fix a record date be obligated to deliver, upon the surrender for the making exercise of a distribution to all holders Right and without requiring payment of any portion of the Purchase Price, Common Stock Shares (including any such distribution made in connection with a consolidation or merger in to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) on such record date, less the fair market value (as determined in good faith by Spread. If the Board of Directors of the CompanyCompany shall determine in good faith that it is likely that sufficient additional Common Shares might be authorized for issuance for exercise in full of the Rights, whose determination 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 shareowner 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be described in a statement filed with the Rights Agentcurrent per share market price (as determined pursuant to Section 11(d) hereof) of the portion of Common Shares on the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Section 11(a)(ii) Trigger Date and the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose value of any computation under Section 11(b) or (c) hereof, the "current market pricecommon stock equivalent" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be have the average of same value as the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to Shares on such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one one-hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person issue a public announcement (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate with prompt notice thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer Agent) stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not be required to, establish procedures to an Acquiring Person whose allocate the right to receive Common Stock and common stock equivalents upon exercise of the Rights would be void pursuant among holders of Rights, which such allocation may be, but is not required to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and for prior to the purpose expiration of any computation in Section 11(a)(ii) and Section 13, 30 Trading Days after but not including the "current market price" per, or "value" of a, share of Common Stock on any date shall beex-dividend date
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, reclassification and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock share 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event any Person (A) a Trigger Event shall become have occurred (other than through an acquisition described in subparagraph (iii) of this paragraph (a)) or (B) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization or reorganization of the Company or other transaction or series of transactions involving the Company which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries beneficially owned by any Acquiring Person or any Affiliate or Associate thereof, each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, . in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of the earlier of the events described in clauses (A) and (B) above. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders occurrence of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beearlier of
Appears in 1 contract
Samples: Rights Agreement (Maic Holdings Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 Common Stock or capital stock 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 receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock (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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes, at any time after the Rights Dividend Declaration Date, an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price for a full share of Common Stock by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event described above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price orand 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 Common Stock which are authorized by the Company's certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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) other equity securities of the then current per share market price Company (including, without limitation, 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 shares of Common Stock (such shares of preferred stock, "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, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's rights of redemption pursuant to Section 23(a) expire (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 stockholder 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 subparagraph (iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall 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 subparagraph (iii), the value of the Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to be the same as the value of Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this subparagraph (iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities having substantially the same rights, privileges and preferences as the shares of Common Stock ("Equivalent Common Stock") or convertible into the Common Stock or Equivalent Common Stock) at a price per share of the Common Stock or Equivalent Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Stock or Equivalent Common Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of Common Stock or Equivalent Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock or Equivalent Common Stock which the aggregate offering price of the total number of shares of the Common Stock or Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or Equivalent Common 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price Current Market Price per share of the 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.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such datedate and, and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, Current Market Price per share of Common Stock on any date shall bebe 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 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, 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 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 Common Stock selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date shall be as determined in good faith by the Independent Directors if the Independent Directors constitute a majority of the Board of Directors or, in the event the Independent Directors do not constitute a majority of the Board of Directors, by an independent investment banking firm selected by the Board of Directors, whose determinaiton shall be described in a statement filed with the Rights Agent and shall
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson (“Section 11(b) Event”), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-thousandths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11 (f) hereof) hereof on the date on which any Person of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the “number of Adjustment Shares”). The Company shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and give the Rights shall then be outstanding, Agent written notice of the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer identity of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; , or the nominee of any of the foregoing, and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence may rely on such notice in carrying out its duties under this Agreement and shall be cancelleddeemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing unless and until it shall have received such notice.
(bc) In the case event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one one-thousandths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a “common stock equivalent”); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which the Section 11(b) Event shall have occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Common Stock and common stock equivalents upon exercise of the Rights among holders of Rights, which such allocation may be, but is not required to be, pro-rata.
(d) If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock (“equivalent preferred stock”)) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11 (d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)1 (f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current market price" per, or value ” of a, share any security (a “Security” for purposes of the Common Stock this Section 11 (f) (i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beconsecutive
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a share exchange, 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 capital stock issuable on such datedate (assuming that such Rights were then exercisable), shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 hereof, in the event any Person shall become becomes an Acquiring Person, each holder of a Right other than any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) 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 shares one one‑thousandths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one‑thousandths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which that would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void without any further action, and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this AgreementAgreement or otherwise. Neither the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person as a result of the Company’s or the Rights Agent’s failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. No Right Certificate shall be issued pursuant to Section 3 hereof that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or AffiliateAffiliate or with respect to any Common Shares otherwise deemed to be Beneficially Owned by any of the foregoing; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or other Person whose Rights would be null and void pursuant to the preceding sentence shall be cancelled. The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such written notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, unless and until it shall have received such written notice.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not otherwise reserved for issuance pursuant to the specific terms of any indenture, incentive or similar plan or other agreement) to permit the exercise in full of the Rights in accordance with Section 11(a)(ii), the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares, the Company shall substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that the current per share market price of one Preferred Share multiplied by such number or fraction is equal to the current per share market price of one Common Share as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 written statement filed with the Rights Agent. Shares Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holder of the Common Stock Rights. Preferred Shares owned by or held for the account of the Company or any Subsidiary 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 and, in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then-current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 written statement filed with the Rights AgentAgent and shall be binding and conclusive for all purposes on the Rights Agent and the holder of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such then-current per share market price per share of the Common StockPreferred Shares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that, in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or Securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to but not including the expiration of 30 Trading Days after but not including 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 per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price, regular way, reported at or prior to 4:00 P.M. Eastern time or, in case no such sale takes place on such day, the average of the bid and asked prices, regular way, reported as of 4:00 P.M. Eastern time, in either case, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the NYSE or, if the Security is not listed or admitted to trading on the NYSE, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the average of the high bid and low asked prices in the over‑the‑counter market, as reported as of 4:00 P.M. Eastern time by NASDAQ or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Company. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business, or, if the "current market price" per, Security is not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares of Preferred Stock or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a7(e) and Section 7(e11(a), (1) 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 reclassificationreclassification shall be adjusted so that the Purchase Price thereafter shall equal the result obtained by dividing the Purchase Price in effect immediately prior to such time by a fraction (the "Adjustment Fraction"), the numerator of which shall be the total number of Preferred Stock (or shares of capital stock issued in such reclassification of the Preferred Stock) outstanding immediately following such time and the denominator of which shall be the total number of Preferred Stock outstanding immediately prior to such time, and (2) the number and kind of shares of capital stock issuable on at the time of the record date for such datedividend or of the effective date of such subdivision, combination or reclassification, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Preferred Stock 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. The adjustments provided for in this Section 11(a)(i) shall be made successively whenever such a dividend is declared or paid or such a subdivision, combination or reclassification is effected. 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event any Person that a Stock Acquisition Date occurs, proper provision shall become an Acquiring Person, be made so that each holder of a Right Right, except as provided below and in Section 7(e), shall thereafter have a right to receive, upon exercise thereof at a price equal to and payment of the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying dividing the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price 50 percent of the Company's Current Per Share Market Price of the Common Stock (determined pursuant to Section 11(d) hereof)) on the date on Stock Acquisition Date (such number of shares being the "Adjustment Shares").
(iii) In the event the number of shares of Common Stock which are authorized by the Company's restated articles of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), 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 then current Purchase Price (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the applicable Purchase Price, (3) shares of Common Stock or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock that the Board of Directors of the Company has deemed to have the same value as shares of Common Stock ("Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any Person combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall become not have made adequate provision to deliver value pursuant to clause (B) above within 30 days following the Stock Acquisition Date, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an Acquiring Personaggregate 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 Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Stock Acquisition Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended as so permitted, the "Substitution Period"). To the extent the Company determines that some action must be taken pursuant to the first or second sentences of this Section 11(a)(iii), the Company (x) shall provide that such action shall apply uniformly to all outstanding Rights other than those that are null and void as provided in Section 7(e), and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended to be afforded exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect (with prompt notice by the Rights. Notwithstanding the foregoing or anything in this Agreement Company of such announcements (as well as a written copy) to the contraryRights Agent). For purposes of this Section 11(a)(iii), any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate the value of such Acquiring Person) the Common Stock shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued the Current Per Share Market Price (as determined pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to 11(d) hereof) of the preceding sentence or Common Stock on the date of the Stock Acquisition Date and the value of any Associate or Affiliate thereof; no Right Certificate Common Stock Equivalent shall be issued at any time upon deemed to have the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to same value as the preceding sentence or any Associate or Affiliate thereof or to any nominee of Common Stock on such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelleddate.
(b) b. In the case the Company shall at any time after the date of this Agreement fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or shares having the same rights, privileges and preferences as the Preferred Stock ("Preferred Stock Equivalents")) or securities convertible into the Common Stock) Preferred Stock or Preferred Stock Equivalents at a price per share of the Common Preferred Stock or Preferred Stock Equivalent (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Stock or Preferred Stock Equivalents) less than the current market price per share then Current Per Share Market Price of the Common Preferred Stock (as defined in Section 11(d)) on such record date, the Purchase Price to number of shares of Preferred Stock for which each Right shall be in effect exercisable after such record date shall be determined by multiplying the Purchase Price in effect number of shares of Preferred Stock for which each Right was exercisable immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of Preferred Stock outstanding on such record date plus the Common number of additional shares of Preferred Stock and/or Preferred Stock Equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible) and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock and/or Preferred Stock Equivalents so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible)Current Per Share Market Price. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares Agent and which shall be binding on the Rights Agent and the holders of the Common Rights. 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 rights, options or warrants are not so issued, the Purchase Price number of shares of Preferred Stock for which each Right shall be adjusted exercisable shall be readjusted to be the Purchase Price number of shares of Preferred Stock for which each Right would then be in effect exercisable if such record date has had not been fixed; and to the extent such rights, options or warrants are issued but not exercised prior to their expiration, the number of shares for which each Right shall be exercisable shall be readjusted to be the number which would have resulted from the adjustment provided for in this Section 11(b) if only the rights or warrants that were exercised had been issued.
(ci) In case the Company shall at any time after the date of this Agreement fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common shares of Preferred Stock but including any dividend payable in stock other than Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), the Purchase Price to number of shares of Preferred Stock for which each Right shall be in effect exercisable after such record date shall be determined by multiplying the Purchase Price in effect number of shares of Preferred Stock for which each Right was exercisable immediately prior to such record date by a fraction, the numerator of which the numerator shall be the current market price per share then Current Per Share Market Price of the Common Preferred Stock (as defined in Section 11(d)) on such record date, and the denominator of which shall be such Current Per Share Market Price of the Preferred Stock, 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 AgentAgent and which shall be binding on the Rights Agent and the holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one 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 number of shares of Preferred Stock for which each Right shall be exercisable shall be readjusted to be the number of shares of Preferred Stock for which each Right would then be exercisable if such record date had not been fixed.
(ii) In case the Company shall at any time after the date of this Agreement fix a record date for the making of a distribution to all holders of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular quarterly cash dividend or a dividend payable in shares of Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(h)(ii)), the number of shares of Preferred Stock for which each Right shall be exercisable after such record date shall be determined by multiplying the number of shares of Preferred Stock for which each Right was exercisable immediately prior to such record date by a fraction, the numerator of which shall be the then Current Per Share Market Price of the Common Stock (as defined in Section 11(d)) on such record date, and the denominator of which the denominator shall be such current Current Per Share Market Price of the Common Stock, less the fair market price per value (as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and which shall be binding on the Rights Agent and the holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of the 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 number of shares of Preferred Stock for which each Right shall again be adjusted exercisable shall be readjusted to be the Purchase Price number of shares of Preferred Stock for which each Right would then be in effect exercisable if such record date had not been fixed.
(di) For the purpose purposes of any computation under Section 11(b) or (c) hereofhereunder, the "current market priceCurrent Per Share Market Price" per, or value of a, share of the common stock (including Common Stock Stock) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock the common stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior but not including to such date; provided, however, that in the event the Current Per Share Market Price of common stock is determined during a period following the announcement by the issuer of such common stock of (A) a dividend or distribution on such common stock payable in such common stock or securities convertible into such common stock, or (B) any subdivision, combination or reclassification of such common stock, and prior to the expiration of 30 Trading Days after but not including the ex-dividend date for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" persuch dividend or distribution, or "value" of athe record date for such subdivision, share of Common Stock on any date shall becombination or reclassification, then, and in each such case, the
Appears in 1 contract
Samples: Rights Agreement (Bioject Medical Technologies Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Rights Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and and/or the number and and/or kind of shares of capital stock issuable on such datedate upon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive upon payment of the then current Purchase Price the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred Shares transfer books of the Company were open, he the holder of the Right would have owned upon such exercise (and, in the case of a reclassification, would have retained after giving effect to such reclassification) and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Rights Agreement, in the event any Person shall become becomes an Acquiring Person, each holder of a Right 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementRights Agreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Rights Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledcanceled.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall take all such action as may be necessary to authorize additional Common Shares of the Company for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares of the Company, the Company shall substitute, for each Common Share of the Company that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that the current per share market price of one Preferred Share multiplied by such number or fraction is equal to the current per share market price of one Common Share of the Company as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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. Shares Agent and shall be binding on the Rights Agent and the holders of the Common Stock Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets assets, cash or stock (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or subscription rights rights, options 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 the numerator shall be the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose the determination of which shall be described in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets assets, cash or stock or evidences of indebtedness so to be distributed or of such subscription rights rights, options or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares (other than the Rights), or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to take into account ex-dividend trading or to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the NASDAQ or such other system then in use, or, if on any such date shall bethe Security is not quoted by any such organization, the average of the closing bid and asked
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a share exchange, 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 capital stock issuable on such datedate (assuming that such Rights were then exercisable), shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 hereof, in the event any Person shall become becomes an Acquiring Person, each holder of a Right other than any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which that would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void without any further action, and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this AgreementAgreement or otherwise. Neither the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person as a result of the Company’s or the Rights Agent’s failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. No Right Certificate shall be issued pursuant to Section 3 hereof that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or AffiliateAffiliate or with respect to any Common Shares otherwise deemed to be Beneficially Owned by any of the foregoing; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or other Person whose Rights would be null and void pursuant to the preceding sentence shall be cancelled. The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such written notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, unless and until it shall have received such written notice.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not otherwise reserved for issuance pursuant to the specific terms of any indenture, incentive or similar plan or other agreement) to permit the exercise in full of the Rights in accordance with Section 11(a)(ii), the Company shall, at the Board’s determination, either (i) take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights or (ii) substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that the fair value, in the Board’s determination, of one Preferred Share multiplied by such number or fraction is approximately equal to the value of one Common Share as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 the numerator shall be the number of Preferred Shares and equivalent preferred shares of the Common Stock outstanding on such record date plus the number of Preferred Shares and equivalent preferred shares of the Common Stock which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of Preferred Shares and equivalent preferred shares of the Common Stock outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 written statement filed with the Rights Agent. Shares Agent and shall be binding and conclusive for all purposes on the Rights Agent and holders of the Common Stock Rights. Preferred Shares and equivalent preferred shares owned by or held for the account of the Company or any Subsidiary 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 and, in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then-current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 written statement filed with the Rights AgentAgent and shall be binding and conclusive for all purposes on the Rights Agent and holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such then-current per share market price per share of the Common StockPreferred Shares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security”) for the purpose of the Common Stock this Section 11(d)(i) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, and for however, that, in the purpose event that the current per share market price of any computation the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in Section 11(a)(ii) and Section 13, the "current market price" pershares of such Security or Securities convertible into such shares, or "value" (B) any subdivision, combination or reclassification of a, share of Common Stock on any date shall besuch Security and prior to but not
Appears in 1 contract
Samples: Rights Agreement (Navient 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common Stock, Shares (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Shares transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i11(a) (i) and Section 11(a)(ii), 11(a) (ii) the adjustment provided for in this Section 11(a)(i11(a) (i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii11(a) (ii).
(ii) In (A) Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring PersonPerson (other than through an acquisition described in subparagraph (iii) of this paragraph (a)), then each holder of a Right shall thereafter shall, for a period of 60 days after the later of the occurrence of any such event and the effective date of an appropriate registration statement pursuant to Section 9 (plus any period during which the exercise of the Rights has been suspended pursuant to Section 11(a) (iv) or 24(c) hereof), have a right to receive, upon exercise thereof on and after the Distribution Date at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) 50% of the Purchase Price or, if less than the Purchase Price, the then current market price per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any Person of the occurrence of the event set forth in 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 hereof, then only the provisions of Section 13 hereof shall become an Acquiring Personapply and no adjustment shall be made pursuant to this Section 11(a) (ii). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common Stock owned by or held specifically provided 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 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 has not been fixedherein.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be
Appears in 1 contract
Samples: Rights Agreement (Fluke Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a share exchange, consolidation or merger in which the Company is the continuing corporationor surviving Person), 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 capital stock of the Company issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock of the Company which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24, in the event any Person shall become becomes an Acquiring Person, then, promptly following the occurrence of such event, proper provision shall be made so that, upon expiration of the Redemption Period, each holder of a Right (except as provided in this Section 11(a)(ii)) shall thereafter have a right to receive, upon exercise thereof thereof, at a price equal to the then current Purchase Price multiplied by the number of shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which of the occurrence of such event. After the Distribution Date and as long as any Person shall Rights are outstanding (other than Rights that have become an Acquiring Person. In the event that any Person shall become an Acquiring Person null and the Rights shall then be outstandingvoid pursuant to this Section 11(a)(ii)), the Company shall not not, except as permitted by Section 23, Section 24, or Section 27 4934-2276-9410.1 hereof, take (or permit any Subsidiary to take) any action which if at the time such action is taken it is reasonably foreseeable that such action would eliminate or substantially diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, from and after the time a Person becomes an Acquiring Person, any Rights that are or were acquired or beneficially owned Beneficially Owned by (A) any Acquiring Person (or any Associate or Affiliate Related Person of such Acquiring Person), (B) a transferee of an Acquiring Person (or of any such Related Person) who becomes a transferee after the Acquiring Person becomes an Acquiring Person, or (C) a transferee of an Acquiring Person (or of any such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming an Acquiring Person and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer that the Board has determined is part of a plan, agreement, arrangement, or understanding that has as a primary purpose or effect the avoidance of this Section 11(a)(ii), shall be null and void without any further action, and any no holder of such Rights shall thereafter have no any rights whatsoever with respect to such Rights, including, without limitation, the right to exercise such Rights Rights, under any provision of this AgreementAgreement or otherwise. Neither the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Related Persons or transferees hereunder. No Right Certificate shall be issued pursuant to Section 3 or Section 6 that represents Rights beneficially owned by an Acquiring Person whose Rights would be that have become null and void pursuant to the preceding sentence or any Associate or Affiliate thereofthis Section 11(a)(ii); no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be have become null and void pursuant to the preceding sentence this Section 11(a)(ii) or any Associate or Affiliate Related Person thereof or to any nominee of such Acquiring Person, Associate Related Person ,or Affiliatewith respect to any Common Shares otherwise deemed to be Beneficially Owned by any of the foregoing; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person, any of its Related Persons, or other Person whose Rights would be have become null and void pursuant to the preceding sentence this Section 11(a)(ii) shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with subparagraph (ii) above, the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares, the Company shall substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of preferred shares or fraction thereof such that the current per share market price of 4934-2276-9410.1 one preferred share multiplied by such number or fraction is equal to the current per share market price of one Common Share as of the date of issuance of such preferred shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 forty five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent. Shares Agent and shall be binding on the Rights Agent and holders of the Common Stock Rights. Preferred Shares owned by or held for the account of the Company or any Subsidiary 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 and, in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing corporationor surviving Person) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then-current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred Shares on such record date, 4934-2276-9410.1 less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such then-current per share market price per share of the Common StockPreferred Shares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and 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.
(d) For the purpose of any computation under hereunder other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date and for purposes of computations made pursuant to Section 11(a)(iii), the “current per share market price” of any security shall be deemed to be the average of the daily closing prices per share of such Security for the ten (10) consecutive Trading Days immediately following but not including such date; provided, however, that, in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or Securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of thirty (30) Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, regular way, reported at or "value" prior to 4:00 P.M. Eastern time or, in case no such sale takes place on such day, the average of athe bid and asked prices, share regular way, reported as of Common Stock 4:00 P.M. Eastern time, in either case, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the Nasdaq Global Select Market or, if the Security is not listed or admitted to trading on the Nasdaq Global Select Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported as of 4:00 P.M. Eastern time by the National Association of Securities Dealers or such other system then in use, or, if on any such date shall bethe Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board. The 4934-2276-9410.1
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one one-hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of shareholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person issue a public announcement (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate with prompt notice thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer Agent) stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not be required to, establish procedures to an Acquiring Person whose allocate the right to receive Common Stock and common stock equivalents upon exercise of the Rights would be void pursuant among holders of Rights, which such allocation may be, but is not required to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after but not including the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") National Market, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities
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. (a).
(i) In the event that the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares shares, or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in 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 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 the aggregate number and kind of shares of Preferred Stock or capital stock stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 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 to, any adjustment required pursuant to Section 11(a)(ii)) hereof.
(ii) In the event that any Person Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, then proper provision shall be made so that each holder of 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 a price equal to the then then-current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of the number of one one-thousandths of a share of Preferred Stock for which such Right was otherwise then exercisable, such number of shares of 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 shares one one-thousandths of Common a share of Preferred Stock for which a Right is then was exercisable immediately prior to the first occurrence of such Section 11(a)(ii) Event, and (y) dividing that product by (y) 50% of the Purchase Price or, if less than the Purchase Price, the then current market price per share market price of the Company's Common Stock of the Company (determined pursuant to Section 11(d) hereof) on the date on which of such first occurrence (such number of shares being hereinafter referred to as the "Adjustment Shares") provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 12 hereof, then only the provisions of Section 12 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). The Company shall notify the Rights Agent as to any Person Persons who are deemed by the Company to be Acquiring Persons or any Associates or Affiliates of the Acquiring Persons and shall become an Acquiring Personidentify any Rights pertaining thereto. In the event that any Person The Rights Agent shall become have no responsibility to itself identify an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such the Acquiring Person, but shall rely solely on the Company's identification.
(iii) In the event that the number of shares of Common Stock which are authorized by the Company's Restated Certificate of Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a)), 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 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company (including, without limitation, shares, or units of shares, of Preferred Stock which the Board of Directors has determined to have the same value as shares of Common Stock (such shares of Preferred Stock, "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 action of the Board of Directors; 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 first occurrence of a Section 11(a)(ii) Event, then the Company shall be void obligated to deliver, upon the surrender for exercise of a Right Certificate and any holder without requiring payment of the Purchase Price, shares of Common Stock (to the extent available) and, if necessary, cash, securities and/or assets that in the aggregate are equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of 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 one hundred twenty (120) days after the first occurrence of a Section 11(a)(ii) Event, in order that the Company may seek stockholder approval for the authorization of such Rights shall thereafter have no right additional shares (such period as it may be extended, the "Substitution Period"). To the extent that the Company determines as provided above that some action is to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void taken pursuant to the preceding sentence or terms of this Section 11(a)(iii) contained above, the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any Associate or Affiliate thereof; no Right Certificate shall authorization of additional shares and/or to decide the appropriate form of distribution to be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void made pursuant to the preceding first sentence or of this Section 11(a)(iii) and to determine the value thereof. In the event of any Associate or Affiliate thereof or to any nominee of such Acquiring Personsuspension, Associate or Affiliate; and any Right Certificate delivered the Company shall deliver notice to the Rights Agent for transfer and issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as deliver notice to an Acquiring Person whose the Rights would 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 Common Stock shall be void the current per share market price of Common Stock (as determined pursuant to Section 11(d) hereof) on the preceding sentence date of the first occurrence of the event described in Section 11(a)(ii) hereof, and the value of any "common stock equivalents" shall be cancelleddeemed to have the same value as the Common Stock on such date.
(b) In the case event the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) date to subscribe for or purchase the Common Preferred Stock (or shares having the same rights, privileges or preferences as the shares of Preferred Stock ("equivalent preferred stock") or securities convertible into the Common StockPreferred Stock or equivalent preferred stock) at a price per share of the Common Preferred Stock or per share of equivalent preferred stock (or having a conversion or exercise price per share of the Common Stockshare, if a security is convertible into the Common Stockor exercisable for Preferred Stock or equivalent preferred stock) less than the "current market price price" per share of the Common Preferred Stock (as defined in Section 11(d)) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock and/or equivalent preferred stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date date, plus the number of additional shares of the Common Preferred Stock 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); 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 in a consideration 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 the Common 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 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 has had not been fixed.
(c) In case the event the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness indebtedness, cash or other assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock, but including any dividend payable 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 the numerator shall be the current market price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and the denominator of which the denominator shall be such current market price price) per share of Preferred Stock provided, however, that in no event shall the Common Stockconsideration 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that if the current market price per share of Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (x) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock or (y) any subdivision, combination or reclassification of such Common Stock and prior to the expiration of thirty (30) Trading Days 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 per share of Common Stock shall be appropriately adjusted to reflect 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 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 Common Stock is listed or admitted to trading or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the NASDAQ Stock Market ("NASDAQ") or such other system then in use, or, if on any such date the shares of Common Stock are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board of Directors. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date, as determined in good faith by the Board of Directors, shall be used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the purpose transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any computation in Section 11(a)(ii) and Section 13national securities exchange, a Business Day. If the Common Stock is not publicly held or not so listed or traded, "current market price" perper share shall mean the fair value per share as determined in good faith by the Board of Directors, or "value" of a, share of whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. If on any such date the Common Stock on any date shall beis not publicly held or not so listed or traded, "current
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-one hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-one hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall bethe
Appears in 1 contract
Samples: Rights Agreement (Furniture Brands International Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Series 4 Purchase Price or the Series 5 Purchase Price, as the case may be, the number and identity of shares covered by each WorldCom Right or MCI Right, as the case may be, and the number of WorldCom Rights or MCI Rights, as the case may be, outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, payable in shares of the Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, (Bii) subdivide the outstanding Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, (Ciii) combine the outstanding Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a WorldCom Right or MCI Right, as the case may be, shall be proportionately adjusted so that the holder of any WorldCom Right or MCI Right, as the case may be, exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such WorldCom Right or MCI Right, as the case may be, prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such WorldCom Right or MCI Right, as the case may be, had been exercised immediately prior to such date and at a time when the Common 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 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).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-thousandths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of Common WorldCom Group Stock of or MCI Group Stock, as the Company case may be, as shall equal the result obtained by (xy) multiplying the then current Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, by the then number of shares one one-thousandths of Common a share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of WorldCom Group Stock or MCI Group Stock, as the Company's Common Stock case may be (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient shares of WorldCom Group Stock or MCI Group Stock, as the case may be, issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Series 4 Purchase Price or the Series 5 Purchase Price, as the case may be, multiplied by the then number of one one-thousandths of a share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, for which a Right is then exercisable, in accordance with the terms of this Agreement, a number of shares, or units of shares, of (y) WorldCom Group Stock or MCI Group Stock, as the case may be, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors by action of at least a majority of the Independent Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of WorldCom Group Stock or MCI Group Stock, as the case may be, and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of WorldCom Group Stock or MCI Group Stock, as the case may be, or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of shareholders; and provided, further, that if the Company is unable to cause sufficient shares of WorldCom Group Stock or MCI Group Stock, as the case may be, and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Series 4 Purchase Price or Series 5 Purchase Price (as adjusted pursuant to this Section 11), as the case may be, in lieu of issuing shares of WorldCom Group Stock or MCI Group Stock, as the case may be, and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of the Independent Directors may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors by action of at least a majority of the Independent Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common case may be (or securities having the same or more favorable rights, privileges and preferences as the Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be ("equivalent preferred stock")) or securities convertible into Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock) case may be, or equivalent preferred stock, at a price per share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock (case may be, or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) per share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, on such record date, the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, to be in effect after such record date shall be determined by multiplying the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, outstanding on such record date plus the number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, which the aggregate offering price of the total number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock so case may be, or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, outstanding on such record date plus the number of additional shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, 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 in a consideration 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 a majority of the CompanyIndependent Directors, whose determination shall be described in a statement filed with the Rights Agent. Shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, 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 or warrants are not so issued, the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, shall be adjusted to be the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, which would then be in effect if such record date has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) hereof), the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, to be in effect after such record date shall be determined by multiplying the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) for one share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, on such record date, date less the amount of cash or the fair market value (as determined in good faith by the Board of Directors a majority of the CompanyIndependent Directors, 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 convertible securities, subscription rights or warrants applicable to one share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, and the denominator of which the denominator shall be such current market price per for one share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stockcase may be. 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 Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, shall again be adjusted to be the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the Nasdaq National Market System, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Independent Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Independent Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange a day on which the Nasdaq National Market System is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, a Business Day. If the Security is not publicly held or not so listed or traded, "current market price" shall mean the fair value as determined in good faith by a majority of the Independent Directors, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Samples: Rights Agreement (Worldcom Inc/ga//)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a share exchange, 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 capital stock issuable on such datedate (assuming that such Rights were then exercisable), shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 hereof, in the event any Person shall become becomes an Acquiring Person, each holder of a Right other than any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which that would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void without any further action, and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this AgreementAgreement or otherwise. Neither the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person as a result of the Company’s or the Rights Agent’s failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. No Right Certificate shall be issued pursuant to Section 3 hereof that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or AffiliateAffiliate or with respect to any Common Shares otherwise deemed to be Beneficially Owned by any of the foregoing; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or other Person whose Rights would be null and void pursuant to the preceding sentence shall be cancelled. The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such written notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, unless and until it shall have received such written notice.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not otherwise reserved for issuance pursuant to the specific terms of any indenture, incentive or similar plan or other agreement) to permit the exercise in full of the Rights in accordance with Section 11(a)(ii), the Company shall, at the Board’s determination, either (i) take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights or (ii) substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that the fair value, in the Board’s determination, of one Preferred Share multiplied by such number or fraction is approximately equal to the value of one Common Share as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 the numerator shall be the number of Preferred Shares and equivalent preferred shares of the Common Stock outstanding on such record date plus the number of Preferred Shares and equivalent preferred shares of the Common Stock which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of Preferred Shares and equivalent preferred shares of the Common Stock outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 written statement filed with the Rights Agent. Shares Agent and shall be binding and conclusive for all purposes on the Rights Agent and holders of the Common Stock Rights. Preferred Shares and equivalent preferred shares owned by or held for the account of the Company or any Subsidiary 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 and, in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then-current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 written statement filed with the Rights AgentAgent and shall be binding and conclusive for all purposes on the Rights Agent and holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such then-current per share market price per share of the Common StockPreferred Shares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security”) for the purpose of the Common Stock this Section 11(d)(i) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that, in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or Securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to but not including the expiration of thirty (30) Trading Days after but not including the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price" per, or "value" price per share equivalent of a, share of Common Stock on any date shall besuch
Appears in 1 contract
Samples: Rights Agreement (Rayonier Advanced Materials Inc.)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event”), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as “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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 shareowner 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the 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 Quotations System (“Nasdaq”) or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Directors of the Company. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 Common Stock or capital stock 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 receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock (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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date, an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price for a full share of Common Stock by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event described above in this subparagraph (ii) (such number of shares is hereinafter referred to as the “Adjustment Shares”), provided that the Purchase Price orand 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) If (x) the number of shares of Common Stock which are authorized by the Company’s certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), or (y) any regulatory approvals necessary for the issuance of such Common Stock have not been obtained by the Company, or (z) the issuance of Common Stock of the Company shall not then be permitted under the Company’s certificate of incorporation or any applicable law or administrative or judicial regulation or order, 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, but subject to Section 9 hereof and, if less than and to the extent required, to the receipt by the Company of any necessary regulatory approvals, 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) other equity securities of the then current per share market price Company (including, without limitation, shares of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, “Common Stock Equivalents”)), (4) debt securities of the Company's , (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 the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s rights of redemption pursuant to Section 23(a) expire (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available and subject to receipt by the Company of any necessary regulatory approvals) 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 Common Stock could be authorized for issuance upon exercise in full of the Rights and that any necessary regulatory approvals for such issuance could be obtained, 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 stockholder approval for the authorization of such additional shares and/or regulatory approvals for the issuance 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 and/or additional regulatory approvals obtained pursuant to the first and/or second sentences of this subparagraph (iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to obtain any required regulatory approvals and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall 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 subparagraph (iii), the value of the Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11 (a) (ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to be the same as the value of Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this subparagraph (iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities having substantially the same rights, privileges and preferences as the shares of Common Stock (“Equivalent Common Stock”) or convertible into the Common Stock or Equivalent Common Stock) at a price per share of the Common Stock or Equivalent Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Stock or Equivalent Common Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of Common Stock or Equivalent Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock or Equivalent Common Stock which the aggregate offering price of the total number of shares of the Common Stock or Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or Equivalent Common 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price Current Market Price per share of the 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.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market price" per, or value of a, “Current Market Price” per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such datedate and, and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, Current Market Price per share of Common Stock on any date shall bebe 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 Common Stock is determined during the period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution
Appears in 1 contract
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 Common Stock or capital stock 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 receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock (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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date, an Acquiring PersonPerson 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 rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price for a full share of Common Stock by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event described above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price orand 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) If (x) the number of shares of Common Stock which are authorized by the Company's certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), or (y) any regulatory approvals necessary for the issuance of such Common Stock have not been obtained by the Company, or (z) the issuance of Common Stock of the Company shall not then be permitted under the Company's certificate of incorporation or any applicable law or administrative or judicial regulation or order, 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, but subject to Section 9 hereof and, if less than and to the extent required, to the receipt by the Company of any necessary regulatory approvals, 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) other equity securities of the then current per share market price Company (including, without limitation, shares of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, "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 the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's rights of redemption pursuant to Section 23(a) expire (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available and subject to receipt by the Company of any necessary regulatory approvals) 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 Common Stock could be authorized for issuance upon exercise in full of the Rights and that any necessary regulatory approvals for such issuance could be obtained, 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 stockholder approval for the authorization of such additional shares and/or regulatory approvals for the issuance 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 and/or additional regulatory approvals obtained pursuant to the first and/or second sentences of this subparagraph (iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to obtain any required regulatory approvals and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall 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 subparagraph (iii), the value of the Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11 (a) (ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to be the same as the value of Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this subparagraph (iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities having substantially the same rights, privileges and preferences as the shares of Common Stock ("Equivalent Common Stock") or convertible into the Common Stock or Equivalent Common Stock) at a price per share of the Common Stock or Equivalent Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Stock or Equivalent Common Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of Common Stock or Equivalent Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock or Equivalent Common Stock which the aggregate offering price of the total number of shares of the Common Stock or Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or Equivalent Common 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price Current Market Price per share of the 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.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market priceCurrent Market Price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such datedate and, and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, Current Market Price per share of Common Stock on any date shall bebe 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 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, 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 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 Common Stock selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date shall be as determined by the Board of Directors of the Company upon the advice of a nationally-recognized, independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in the State of New York are not authorized or obligated by law or executive order to close. If the Common Stock is not publicly held or not so listed or traded, "Current Market Price" per share shall mean the fair value per share as determined by the Board of Directors of the Company upon the advice of a nationally-recognized, independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Rights Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Rights Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"Adjustment Shares"). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a "Section 11(a)(ii) Event"), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Rights Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledcanceled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as "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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent" shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or preferred shares having substantially the same rights, privileges and preferences as the Common Stock Shares ("equivalent preferred shares")) or securities convertible into the Common Stock) Shares at a price per Common Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of Common Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional Common Shares and/or equivalent preferred shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 11(d)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (i) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (ii) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each Trading 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 the American Stock Exchange or, if the Securities are not listed or admitted to trading on the New York Stock Exchange or the American Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System ("Nasdaq") or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the purpose transaction of business or, if the Security is not listed or admitted to trading on any computation in Section 11(a)(ii) and Section 13national securities exchange, a Business Day. If the Common Shares are not publicly held or so listed or traded, "current per share market price" pershall mean the fair value per share as determined in good faith by the Board of Directors of the Company, or "value" of a, share of Common Stock on any date whose determination shall bebe described in a statement filed with the Rights Agent.
Appears in 1 contract
Samples: Rights Agreement (Ladish Co Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock of the Company payable in shares of Common Stock of the Common StockCompany, (B) subdivide the outstanding Common StockStock of the Company, (C) combine the outstanding Common Stock of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Common Stock or capital stock 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 receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to to, but not including, such date and at a time when the Common Stock (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 Section 11(a)(ithis Section
(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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date, an Acquiring PersonPerson except as the result of a transaction set forth in Section 13(a) hereof, then proper provision shall be made so that each holder of a Right Right, except as provided 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 shares one one-halves of a share of Common Stock for which a Right is then exercisable, exercisable in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price for a full share of Common Stock by the then number of shares one one-halves of a share of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event described above in this subparagraph (ii) (such number of shares is hereinafter referred to as the “Adjustment Shares”), provided that the Purchase Price orand 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) If (x) the number of shares of Common Stock which are authorized by the Company’s certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), or (y) any regulatory approvals necessary for the issuance of such Common Stock have not been obtained by the Company, or (z) the issuance of Common Stock of the Company shall not then be permitted under the Company’s certificate of incorporation or any applicable law or administrative or judicial regulation or order, the Company shall (A) determine the excess of (1) the product obtained by multiplying the then Current Market Price by the number of 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, but subject to Section 9 hereof and, if less than and to the extent required, to the receipt by the Company of any necessary regulatory approvals, 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) other equity securities of the then current per share market price Company (including, without limitation, shares of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, “Common Stock Equivalents”)), (4) debt securities of the Company's , (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 the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s rights of redemption pursuant to Section 23(a) expire (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available and subject to receipt by the Company of any necessary regulatory approvals) 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 Common Stock could be authorized for issuance upon exercise in full of the Rights and that any necessary regulatory approvals for such issuance could be obtained, 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 stockholder approval for the authorization of such additional shares and/or regulatory approvals for the issuance 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 and/or additional regulatory approvals obtained pursuant to the first and/or second sentences of this subparagraph (iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to obtain any required regulatory approvals and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall 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 subparagraph (iii), the value of the Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to be the same as the value of Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this subparagraph (iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock of the Company entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Stock of the Company (or securities having substantially the same rights, privileges and preferences as the shares of Common Stock (“Equivalent Common Stock”) or securities convertible into the Common Stock or Equivalent Common Stock) at a price per share of the Common Stock or Equivalent Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Stock or Equivalent Common Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of Common Stock or Equivalent Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock or Equivalent Common Stock which the aggregate offering price of the total number of shares of the Common Stock or Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or Equivalent Common Stock 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 in a 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 AgentAgent and shall be conclusive for all purposes. Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock of the Company (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Stock (as defined in Section 11(d)) 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 AgentAgent and shall be conclusive for all purposes) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of the Common Stock and of which the denominator shall be such current market price Current Market Price per share of the Common Stock; 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. 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.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market price" per, or value of a, “Current Market Price” per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to, but not including, such date and, for purposes of computations made pursuant to such date, and for the purpose of any computation in Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, Current Market Price per share of Common Stock on any date shall bebe deemed to be the average of the daily closing prices per share of such Common Stock for the five (5) consecutive Trading Days immediately following, but not including, such date; provided, however, that in the event that the Current Market Price per share of 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 thirty (30) Trading Day or five (5) 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.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) split or subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two (2) times the then current Purchase Price per full Common Share multiplied by the fractional number of shares a Common Share or the number of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying two (2) times the then current Purchase Price per full Common Share by the then fractional number of shares a Common Share or the number of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event”), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In lieu of issuing any Common Shares in accordance with Section 11(a)(ii) hereof, the Company, acting by or pursuant to a resolution of the Board of Directors of the Company, may, and in the event that there shall not be sufficient Common Shares of the Company (x) which are authorized by the Company’s Articles of Organization but not issued (and not reserved for issuance for purposes other than upon exercise of the Rights) or (y) which are issued but not outstanding to permit the exercise in full of the Rights in accordance with Section 11(a)(ii), the Company, acting by or pursuant to a resolution of the Board of Directors of 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 payment of the applicable Purchase Price, (1) equity securities of the Company (including, without limitation, shares of preferred stock, or units of shares of preferred stock or Common Stock) which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock or unites of shares of preferred stock or Common Stock, hereinafter referred to as “Common Stock Equivalents”), (2) cash, (3) a reduction in the Purchase Price, (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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any Common Stock Equivalent shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or securities convertible into the Common Stock) Shares at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 . In the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in . 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price" per, 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 "value" of aadmitted to trading on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, share of if the Common Stock on any date shall beShares are not listed or
Appears in 1 contract
Samples: Rights Agreement (Molecular Insight Pharmaceuticals, Inc.)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding shares of Common Stock, (C) combine the outstanding shares of Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification or recapitalization of the Common Stock (including any such reclassification or recapitalization in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and in Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination combination, reclassification or reclassificationrecapitalization, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock stock, other securities and/or property which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination combination, reclassification or reclassificationrecapitalization; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right. If an event occurs which would require an adjustment under both 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event that at any Person time after the date hereof, any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, Person then proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price for one share of the Company's Common Stock (determined pursuant to Section 11(d) hereof)) on the date on which any Person of the occurrence of the event set forth above in this subparagraph (ii) (such number of shares being referred to as the "number of Adjustment Shares"); PROVIDED, HOWEVER, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall become an Acquiring Person. apply and no adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) or, if any Person shall become an Acquiring Person regulatory approvals for the issuance of such Common Stock has not been obtained by the Company, and the Rights shall then be outstandingbecome so exercisable, the Company shall not take notwithstanding any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any other provision of this Agreement. No , to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which it is a party, the Company shall, with respect to each Right, make adequate provision to substitute upon exercise of such Right Certificate shall be issued to the extent necessary and on a pro rata or such other basis as the Company deems appropriate, (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company (including without limitation shares or units of shares of preferred stock or other securities), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the "current per share market price" (as determined pursuant to Section 3 that represents Rights beneficially owned 11(d) hereof) of the Common Stock for which such Right is otherwise exercisable, where such aggregate value has been determined by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time Board of Directors of the Company based upon the transfer advice of any Rights to an Acquiring Person whose Rights would be void pursuant to a nationally recognized investment banking firm selected by the preceding sentence or any Associate or Affiliate thereof or to any nominee Board of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to Directors of the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledCompany.
(b) In the case the Company shall fix a record date is fixed by the Company or otherwise established for the issuance of rights rights, options or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) per share of Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Shares of the Common 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 fixedfixed or established; and in the event that such rights 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 has had not been fixedfixed or established.
(c) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or dividend), assets (other than a dividend payable in Common Stock, but including any dividend payable in stock other than Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the current market price per share of the Common Stock (as defined in Section 11(d)) per share of Common Stock on such record date, less the fair market value (as determined in reasonably and with good faith to the holders of Rights by the Board 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) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to distributable in respect of one share of the Common Stock and the denominator of which the denominator shall be such the current market price per share of the Common Stock; 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. 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that in the event that the current market price per share of Common Stock is determined during a period following the announcement by the issuer of the Common Stock of (i) a dividend or distribution on the Common Stock payable in shares of Common Stock or securities convertible into shares of Common Stock or (ii) any subdivision, combination or reclassification of the Common Stock, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the purpose of any computation record date for such subdivision, combination or reclassification, as the case may be, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per common share equivalent. 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 "value" of aadmitted to trading on the New York Stock Exchange or, share if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then in use, or, if on any such date the shares of Common Stock are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board of Directors of the Company, except that, if on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date as determined in good faith by the Board of Directors of the Company shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Stock is not publicly held or not so listed or traded, "current market price" per share shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"Adjustment Shares"). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a "Section 11(a)(ii) Event"), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares and which, in the written opinion of counsel addressed to such Board, may be issued without violating the representation in the sixth paragraph under the caption "Amendment of Articles of Incorporation to Authorize Preferred Stock" in the Company's Proxy Statement for its 1998 Annual Meeting of Shareholders (such shares of preferred stock, hereinafter referred to as "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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent" shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at (it is understood that without creating any implication that an increase of more than such amount would cause a rate dividend to fail to satisfy such standard, an increase of not in excess to exceed one cent per share, appropriately adjusted to reflect any stock split, stock dividend of 125% of similar transaction occuring after the rate of the last date hereof, shall not cause a dividend not to be a regular quarterly cash dividend theretofore paid dividend) or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, and for however, that in the purpose event that the current per share market price of any computation the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Section 11(a)(ii) and Section 13, the "current market price" perCommon Shares or securities convertible into Common Shares, or "value" of a(ii) any subdivision, share combination or reclassification of Common Stock on any date shall beShares and prior to the expiration of
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. (a)EXHIBIT 4.1
(i) In the event If the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Shares or capital stock 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 the aggregate number and kind of shares of Preferred Shares or capital stock stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company for the Preferred Shares 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 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 to, any adjustment required pursuant to Section 11(a)(ii); 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 capital stock of the Company issuable upon exercise of such Rights.
(ii) In the event Subject to Section 24 of this Agreement, if any Person Person, alone or together with his Affiliates and Associates, shall become an Acquiring Person, then proper provision shall be made so that each holder of a Right Right, except as provided below, shall thereafter have a the right to receive, upon exercise thereof at a price equal to the then then-current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of the number of one one-hundredths of a Preferred Share for which such Right was otherwise then exercisable, such number of shares of Class A Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is was then exercisable immediately prior to the first occurrence of such Section 11(a)(ii) Event, and (y) dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price 50% of the Company's Current Market Price per Class A Common Stock Share (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In of such first occurrence (such number of shares being hereinafter referred to as the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"ADJUSTMENT SHARES"). Notwithstanding the foregoing or anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights that are Beneficially Owned by (i) an Acquiring Person, or were acquired an Associate or beneficially owned by any Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate Affiliate) who becomes a transferee after the Acquiring Person becomes such or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring PersonPerson or to any Person with whom the Acquiring Person has any continuing agreement, EXHIBIT 4.1 arrangement or understanding regarding the transferred Rights or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 11(a)(ii), shall be become null and void without any further action and any no holder of such Rights shall thereafter have no right any rights whatsoever with respect to exercise such Rights Rights, whether under any provision of this AgreementAgreement or otherwise. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof shall be cancelledcanceled. The Company shall use all reasonable efforts to insure that the provisions of this Section 11(a)(ii) and Section 4(b) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any of its Affiliates, Associates or transferees hereunder.
(iii) If the number of Class A Common Shares which are authorized by the Company's Certificate of Incorporation, as amended and restated, and 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 Section 11(a)(ii), or should the Board of Directors so elect, 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 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company (including, without limitation, Preferred Shares, or units of Preferred Shares, which the Board of Directors has determined to have the same value as the Class A Common Shares (such Preferred 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 action of the Board of Directors; PROVIDED, HOWEVER, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the first occurrence of a Section 11(a)(ii) 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, Class A Common Shares (to the extent available) and, if necessary, cash, securities and/or assets that in the aggregate are equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional Class A Common Shares 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 one hundred twenty (120) days after the first occurrence of a Section 11(a)(ii) Event, in order that the Company may seek stockholder EXHIBIT 4.1 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 as provided above that some action is to be taken pursuant to this Section 11(a)(iii), the Company (x) shall provide, subject to Section 11(a)(ii), that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to the first sentence of this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Company 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 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 Class A Common Shares shall be the Current Market Price per Class A Common Share (as determined pursuant to Section 11(d)(i)) on the date of the first occurrence of the event described in Section 11(a)(ii) and any Common Stock Equivalents shall be deemed to have the same value as the Class A Common Shares on such date.
(b) In the case If the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) date to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges or preferences as Preferred Shares ("EQUIVALENT PREFERRED STOCK") or securities convertible into the Common Preferred Shares or Equivalent Preferred Stock) at a price per Preferred Share or per share of the Common Equivalent Preferred Stock (or having a conversion or exercise price per share of the Common Stockshare, if a security is convertible into the Common or exercisable for Preferred Shares or Equivalent Preferred Stock) less than the current market price Current Market Price per share of the Common Stock Preferred Share (as defined in determined pursuant to Section 11(d11(d)(ii)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of shares of the Common Preferred Shares and/or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price, and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date date, plus the number of additional shares of the Common Preferred Shares 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); 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 capital stock of the Company issuable upon exercise of such Rights. In case such subscription price may be paid in a consideration 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. Preferred Shares of the Common 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; ;
EXHIBIT 4.1 and in the event that if such 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 has had not been fixed.
(c) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness indebtedness, cash or other assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares, but including any dividend payable on stock other than Preferred Shares) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the current market price Current Market Price per share of the Common Stock Preferred Share (as defined in determined pursuant to Section 11(d)11(d)(ii) 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 share of Preferred Share, and the Common Stock and denominator of which the denominator shall be such current market price Current Market Price per share Preferred Share; 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 Common Stockcapital 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 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share of the Current Market Price per Class A Common Stock Share on any date of determination shall be deemed to be the average of the daily closing prices per share of such Class A Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that if the Current Market Price per Class A Common Share is determined during a period following the announcement by the issuer of such Class A Common Shares of (x) a dividend or distribution on such Class A Common Shares payable in Class A Common Shares or securities convertible into such Class A Common Shares or (y) any subdivision, combination or reclassification of such Class A Common Shares and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current market Current Market Price per Class A Common Share shall be appropriately adjusted to reflect the Current Market Price per share equivalent of such Class A Common Shares. The closing price for each day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of if the Class A Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on any date shall bethe principal EXHIBIT 4.1
Appears in 1 contract
Samples: Rights Agreement (Iturf Inc)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the 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 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 capital 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes an Acquiring PersonPerson except as the result of a transaction set forth in Section 13(a) hereof (any such event, a “Section 11(a)(ii) Event”), then, prior to the later of (x) the date on which the Company’s rights of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right Right, except as provided 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 for the number of shares one one-thousandths of Common a share of Preferred Stock for which a such Right is then exercisable, 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 shares one one-thousandths of Common a share of Preferred Stock for which a 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 the event listed above in this subparagraph (ii) (such number of shares are hereinafter referred to as the “Adjustment Shares”) provided that the Purchase Price orand 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 Common Stock which are authorized by the Company’s certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), if less than 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 then current per share market price Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have ‘the same value as shares of Common Stock (such shares of preferred stock, “Common Stock Equivalents”)), (4) debt securities of the Company's , (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 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 (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (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 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 (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall give 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 Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to have the same value as the Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having substantially the same rights, privileges and preferences as the shares of Preferred Stock (“Equivalent Preferred Stock”) or convertible into the Common Preferred Stock or Equivalent Preferred Stock) at a price per share of the Common Preferred Stock or Equivalent Preferred Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Preferred Stock or Equivalent Preferred Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) 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 shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a 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 the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)) 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 share of the Common Preferred Stock and of which the denominator shall be such current market price Current Market Price per share of the Common 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.
(di) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market price" per, or value of a, “Current Market Price” per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to such date, date and for the purpose purposes of any computation in computations made pursuant to Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, “Current Market Price” per share of Common Stock on any date shall bebe 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 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 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 (“NYSE”) or, if the shares of the Common Stock are not listed or admitted to trading on the NYSE, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the 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
Appears in 1 contract
Samples: Rights Agreement (Lydall Inc /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. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Aii) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares shares, or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate Purchase Price such holder would have to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become an Acquiring Person, then proper provision shall be made so that each holder of a Right Rights, subject to Section 7(e) and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, shall have a right to receive, upon exercise thereof at a price equal to and payment of the then current Purchase Price multiplied of the Rights exercised by the number of shares of Common Stock for which a Right is then exercisable, holder in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares Rights then exercised by the holder of Common Stock for which a Right is then exercisable the Rights and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price 50% of the Company's Current Market Price per one share of Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of any one of the events listed above in this subparagraph (b)) (such number of shares being referred to as the "Number of Adjustment Shares").
(c) In the event that there shall not be sufficient shares in treasury or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, a number of shares, or unit of shares, of (x) Common Stock, and (y) any class or series of preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the Number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "Common Stock Equivalent"); provided however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or Common Stock Equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or Common Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or Common Stock Equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law, and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or Common Stock Equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), a majority of the Board of Directors may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the event described in Section 11(b) hereof shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and Common Stock Equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into the Common Preferred Stock or Equivalent Preferred Stock) , at a subscription or purchase price per share of the Common Preferred Stock (or per share of Equivalent Preferred Stock or having a conversion price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering subscription or purchase price of the total number of shares of the Common Preferred Stock so or Equivalent Preferred Stock to be offered for subscription or purchase (and/or the aggregate initial conversion price of the convertible securities so to be offeredoffered for subscription or purchase) would purchase at such current market price Current Market Price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 or purchase price (and/or the conversion price of convertible securities) may be paid in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per Current Market Price for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per Current Market Price for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market priceCurrent Market Price" per, or value of a, share any Security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Current Market Price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market Current Market Price" shall be appropriately adjusted to reflect the Current Market Price per share equivalent of such Security. The closing price for each day shall be the last transaction price as reported by the NASDAQ National Market or, if not so reported, the average of the high bid and low asked prices in the over-the-counter market, as reported by the NASDAQ Stock Market or such other system then in use, or, if the Security is not reported by such organization, the last sale price" per, 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 on the principal national securities exchange on which the Security is listed or "value" of aadmitted to trading or, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices as furnished by a professional market maker in the Security selected by a majority of the Board of Directors. If on any such date shall beno market maker is making a market in the Security, the fair value of such Security on such date as determined in
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company Corporation shall at any time after the date of this Agreement June 11, 1998 (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii)shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value, if any, of 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)shares of capital stock of the Corporation issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event that a Share Acquisition Date shall occur at any Person shall become an Acquiring Persontime after May 7, 1998, then each holder of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of the number of Common Shares for which the Right is then exercisable, such number of shares of Common Stock Shares of the Company Corporation as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the CompanyCorporation's Common Stock Shares (determined pursuant to Section 11(d) hereof) on hereof as of the date on which any such Person shall become became an Acquiring Person). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company Corporation shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to occurrence of the contraryevent described above, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof shall be cancelledcanceled.
(iii) In the event that there shall not be sufficient Common Shares authorized and unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Corporation shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights. However, if the Corporation is unable to cause the authorization of additional Common Shares within 90 calendar days after the occurrence of an event in Section 11(a)(ii), then, notwithstanding anything in this Agreement to the contrary, the Corporation shall determine the excess of the value, as determined by the Board of Directors in good faith, of the Common Shares issuable upon the exercise of a Right over the Purchase Price (such excess being hereinafter referred to as the "Spread") and shall be obligated to deliver, upon the surrender of such Right and without requiring payment of the Purchase Price, Common Shares (to the extent available) and cash (to the extent permitted by applicable law and any agreements or instruments to which the Corporation is a party in effect immediately prior to the first occurrence of an event in Section 11(a)(ii)) in an amount equal to the Spread. To the extent that any legal or contractual restrictions prevent the Corporation from paying the full amount of cash payable in accordance with the foregoing sentence, the Corporation shall pay to holders of the Rights as to which such payments are payable all amounts which are not then restricted on a pro rata basis and shall continue to make payments on a pro rata basis as funds become available until the full amount due to each such Right holder has been paid.
(b) In the case the Company Corporation shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges and preferences as the Common Stock Shares ("equivalent common shares")) or securities convertible into the Common Stock) Shares or equivalent common shares at a price per Common Share or equivalent common share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or equivalent common shares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of Common Shares and/or equivalent common shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional Common Shares and/or equivalent common shares of the Common Stock 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, if any, of the shares of capital stock of the Corporation issuable upon exercise of one Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the CompanyCorporation, whose determination shall be described in a statement filed with the Rights Agent. Common Shares of the Common Stock owned by or held for the account of the Company Corporation 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 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 has had not been fixed.
(c) In case the Company Corporation shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company Corporation is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Shares on such record date, date less the fair market value (as determined in good faith by the Board of Directors of the CompanyCorporation, 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; 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, if any, of the shares of capital stock of the Corporation to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, of any Security (a "Security" for the purpose of this Section 11(d)(i) shall mean capital stock or value of a, share of the Common Stock equity security) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination of reclassification, then, and in each such case, the current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Corporation. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Security is not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-one hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-one hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities convertible into having the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall besame
Appears in 1 contract
Samples: Rights Agreement (Hearx LTD)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event any Person shall become an Acquiring Person, each holder of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for 20 consecutive Trading Days immediately following such date; provided, however, that in the event that the current market price (or value) per share of the Common Stock is determined during the period following the announcement by the issuer of such Common Stock of (i) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock, or (ii) any sub-division, combination or reclassification of such Common Stock, and prior to the expiration of 30 Trading Days or 20 Trading Days, as the case may be, after the ex-dividend date for such dividend or distribution, or the record date for such sub-division, combination or reclassification, then, and in each such case, the "current market price" or "value" 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 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 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 Common Stock selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date as determined in good faith by the Board of Directors of the Company shall be used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of the Common Stock are not listed or admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in the State of New York are not authorized or obligated by law or executive order to close. If the Common Stock is not publicly held or not so listed or traded, "current market price" per share shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right of the Rights, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement May 15, 1997, but prior to the Distribution Date (A) declare declares a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide sub-divides the outstanding Common StockShares, (C) combine combines the outstanding Common Stock Shares into a smaller number of shares shares, or (D) issue issues any shares of its capital stock other than Common Shares in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided the Purchase Price shall be proportionately decreased in this Section 11(athe case of a stock dividend or subdivision or reclassification and, in the case of a combination, the Purchase Price shall be proportionately increased. In the event the Company at any time on or after the Distribution Date (A) and Section 7(edeclares a dividend on the Common Shares payable in Common Shares, (B) hereofsubdivides the outstanding Common Shares, (C) combines the outstanding Common Shares into a smaller number of shares, or (D) issues any shares other than Common Shares in a reclassification of the Common Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination combination, or reclassification, and the number of Common Shares or the number and kind type of shares of capital stock other than Common Shares, as the case may be, issuable on at such date, time shall be proportionately adjusted (except as otherwise provided in this Section 11(a) or Section 7(e)) so that the holder of any Right Rights exercised after such time shall be entitled to receive the aggregate number of Common Shares or the number and kind type of shares of capital stock whichother than Common Shares, as the case may be, that, if such Right the Rights had been exercised immediately prior to such date time and at a time when the Common Stock transfer books of the Company for the Common Shares were open, he the holder would have owned upon such the exercise and been entitled to receive by virtue of such the dividend, subdivision, combination combination, or reclassification. If an event occurs which that would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event any Person shall become (other than the Company, any Subsidiary, any employee benefit plan or employee stock ownership plan of the Company or of any Subsidiary, or any Person organized, appointed, or established by the Company or any Subsidiary for or pursuant to the terms of any such plan), alone or together with any of its Affiliates or Associates, becomes an Acquiring PersonPerson (a "Flip-in Event"), proper provision shall be made so that, from and after the occurrence of such Flip-in Event, each holder of a Right (except as provided in Section 7(e)) shall thereafter have a the right to receive, upon exercise thereof at a price equal to of the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of one Common Stock Share of the Company as for an Exercise Price equal to $1.00 per share (the par value of a Common Share); except that no such provisions shall equal be made, and no such Flip-in Event shall be deemed to occur, if the result obtained by (x) multiplying the then current Purchase Price Person becomes an Acquiring Person pursuant to a tender offer or exchange offer recommended by the then Board of Directors of the Company (prior to the commencement of the tender offer or exchange offer) for all outstanding Common Shares of the Company at a price and on other terms determined by the Board of Directors of the Company (prior to the commencement of the tender offer or exchange offer) to be fair to and in the best interests of the Company and its shareholders, employees, customers, and other constituencies. The number of shares Common Shares purchasable upon exercise of the Rights shall be subject to adjustment as provided in this Section 11.
(iii) In the event the number of authorized but unissued Common Stock for which a Right is then exercisable Shares of the Company and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of Common Shares held in the Company's Common Stock treasury is not sufficient to permit the exercise in full of all of the outstanding Rights in accordance with paragraph (determined pursuant to ii) of this Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding11(a), the Company shall not take any action which would eliminate apportion among all of the outstanding Rights, on a pro rata basis, the Common Shares available for delivery upon exercise of the Rights and, upon exercise of each Right, shall deliver to the holder the number or diminish fraction of Common Shares apportioned to the benefits intended Right and an undertaking to provide the balance of the Common Shares or other consideration in accordance with this Section 11(a)(iii). In such event, the Company shall (A) call a special meeting of shareholders to be afforded by held within 90 days after the Rights. Notwithstanding occurrence of the foregoing or anything Flip-in this Agreement Event for the purpose of adopting an amendment to the contraryAmended Articles of Incorporation of the Company to provide a sufficient number of Common Shares to permit the exercise in full of all of the outstanding Rights and (B) take all other actions necessary to authorize a sufficient number of Common Shares. If the Amended Articles of Incorporation are within such 90-day period amended to authorize a sufficient number of Common Shares, any Rights the Company shall, as soon as practicable after the amendment becomes effective, deliver a certificate or certificates for the balance of the Common Shares due to each holder that are or were acquired or beneficially owned by any Acquiring has theretofore exercised a Right. Each such certificate will be dated, and the Person (or any Associate or Affiliate of such Acquiring Person) in whose name the certificate is issued shall be void and any deemed to have become the record holder of the Common Shares on, the date provided in Section 10. If the Amended Articles of Incorporation are not within such Rights shall thereafter 90-day period amended to authorize a sufficient number of Common Shares, the Company shall, on or before the last day of the 90-day period, deliver to each holder that has exercised a Right (i) preferred shares or debt securities of the Company, cash, or other assets, or a combination of these, having a value equal to the aggregate market price (as defined in Section 11(d)) immediately after the occurrence of the Flip-in Event of the balance of the Common Shares and (ii) any dividends or other distributions on the Common Shares that the holder would have no right been entitled to receive if the Common Shares had been issued upon the exercise such Rights under any provision of the Right in accordance with this Agreement. No Right Certificate The value of any such preferred shares, debt securities, or assets shall be issued pursuant to Section 3 that represents Rights beneficially owned as determined in good faith by the Continuing Directors if the Continuing Directors constitute a majority of the Board of Directors or, if the Continuing Directors do not constitute a majority of the Board of Directors, by an Acquiring Person independent investment banking firm selected by the Board of Directors, whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate determination shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to described in a statement filed with the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence and shall be cancelledconclusive for all purposes.
(b) In the case the Company shall fix fixes a record date for the issuance of rights or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges, and preferences as the Common Stock Shares ("equivalent common shares")), or securities convertible into the Common Stock) Shares or equivalent common shares at a price per Common Share or per equivalent common share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or equivalent common shares) less than the current market price per share of the Common Stock (as defined in Section 11(d)) per Common Share on such the record date, the Purchase Price to be in effect after such the record date shall be determined by multiplying the Purchase Price in effect immediately prior to such the record date by a fraction, fraction the numerator of which the numerator shall be is the number of shares of the Common Stock Shares outstanding on such the record date plus the number of shares of the Common Stock which Shares that the aggregate offering price of the total number of Common Shares or equivalent common shares of the Common Stock so to be offered (and/or or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current the market price and the denominator of which the denominator shall be is the number of shares of the Common Stock Shares outstanding on such the record date plus the number of additional Common Shares or equivalent common shares of the Common Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such any part of the subscription price may be is paid in a consideration part or all of which shall be in a form other than cash, the value of such the 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. Common Shares of the Common 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 Adjustments shall be made successively whenever such a record date is fixed; and , and, in the event that such the rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which that would then be in effect if such the record date has had not been fixed. No adjustment is required under this Section 11(b) as a result of the issuance of Rights under this Agreement.
(c) In case the Company shall fix fixes a record date for the making of a distribution to all holders of Common Shares of the Common Stock Company (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividends, but including any dividend payable in shares other than Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)) and the Rights), the Purchase Price to be in effect after such the record date shall be determined by multiplying the Purchase Price in effect immediately prior to such the record date by a fraction, fraction the numerator of which is the numerator shall be the current market price per share of the Common Stock (as defined in Section 11(d)) per Common Share on such the 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 the evidences of indebtedness so to be distributed or of such the subscription rights or warrants applicable to one share of Common Share and the Common Stock and denominator of which the denominator shall be such current the market price per share of the Common StockShare. Such adjustments Adjustments shall be made successively whenever such a record date is fixed; and , and, in the event that such the distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which that would then be in effect if such the record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) 11(a), (b), or (c) hereof, the "current market price" per, or value of a, share of the a Common Stock Share on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such this term is hereinafter defined) immediately prior to such date, except that, in the event the "market price" per Common Share is determined during the period following the announcement by the issuer of the Common Shares of (A) a dividend or distribution on the Common Shares payable in Common Shares or securities convertible into Common Shares or (B) any subdivision, combination, or reclassification of the Common Shares and prior to the expiration of 30 Trading Days after the ex-dividend date for the purpose of any computation in Section 11(a)(ii) and Section 13dividend or distribution or the record date for the subdivision, combination, or reclassification, the "current market price" pershall, in each such case, be appropriately adjusted. 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 "value" of aadmitted to trading on the NYSE or, share of if the Common Stock Shares are not listed or admitted to trading on the NYSE, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any date shall benational securities exchange, the last quoted sale price or, if no sale price is quoted, the average of the high bid and low
Appears in 1 contract
Samples: Rights Agreement (Keycorp /New/)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-thousandths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one one-thousandths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any date shall benational securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") National
Appears in 1 contract
Samples: Rights Agreement (Vistacare, Inc.)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a)9.
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof9(a), 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right.
(ii) In From and after the event any Person shall become an Acquiring Person, each holder occurrence of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contraryevent, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person, including, without limitation, any Rights issued in respect of any Common Shares that are beneficially owned by any Acquiring Person at the time such Acquiring Person becomes an Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision provisions of this Agreement. No Right Rights Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Rights Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Rights Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall issue as many of the Common Shares as are available therefor to the holders of the Rights in the order that it receives exercises thereof, and may, but shall not be obligated to, take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or securities convertible into the Common Stock) Shares at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d9(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)9(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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) on Shares after 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 9(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect this current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by The Nasdaq Stock Market, Inc. ("Nasdaq") or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Security is not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares covered by Preferred Shares or other securities or property purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable upon exercise of a Right on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred Shares transfer books of the Company were open, he the holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become becomes an Acquiring PersonPerson (the first occurrence of such event being referred to as the "Flip-In Event"), then each holder of a Right Right, except as otherwise provided in Section 3A and Section 11(a)(iii), 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisableexerciseable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable exerciseable and (y) dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price Current Per Share Market Price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on of such Flip-In Event; provided, however, that the Purchase Price (as so adjusted) and the number of Common Shares so receivable upon exercise of a Right shall, following the Flip-In Event, be subject to further adjustment as appropriate in accordance with Section 11(f) hereof. From and after the occurrence of an event specified in 13(a) hereof, any Rights that theretofore have not been exercised pursuant to this Section 11(a)(ii) shall thereafter be exercisable only in accordance with Section 13 and not pursuant to this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Board of Directors shall, to the extent permitted by applicable law and any material agreements then in effect to which the Company is a party, (A) determine the excess of (1) the value of the Common Shares issuable upon the exercise of a Right in accordance with the foregoing paragraph (ii) (the "Current Value") over (2) the Purchase Price as adjusted in accordance within the foregoing subparagraph (ii) (such excess is herein referred to as the "Spread"), and (B) with respect to each Right (other than Rights which have become void pursuant to the foregoing subparagraph (ii)), make adequate provision to substitute for the Common Shares issuable in accordance with the foregoing subparagraph (ii), upon the exercise of the Rights and payment of the applicable Purchase Price as adjusted in accordance therewith, (1) cash, (2) a reduction in such Purchase Price, (3) Preferred Shares or other equity securities of the Company (including, without limitation, shares, or fractions of shares, of preferred stock which, by virtue of having dividend, voting and liquidation rights substantially comparable to Common Shares, are deemed in good faith by the Board of Directors of the Company to have substantially the same value as shares of Common Stock (such shares of preferred stock are herein referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets or (6) any Person combination of any, some or all of the foregoing, having an aggregate value equal to the Current Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the Company upon the advice of a nationally recognized investment banking firm selected in good faith by the Board of Directors of the Company; provided, however, if the Company shall become not make adequate provision to deliver value pursuant to clause (B) above within 30 days following the Flip-In Event, then the Company shall be obligated to deliver, to the extent permitted by applicable law and any material agreements then in effect to which the Company is a party, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Shares of the Company (to the extent available) and then, if necessary, such number or fractions of Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an Acquiring Personaggregate value equal to the Spread. If, upon the occurrence of a Flip-In Event, the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, then, if the Board of Directors so elects, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the date of the Flip-In Event, in order that the Company may seek shareholder approval for the authorization of such additional shares (such 30-day 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 second and/or third sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 11(a)(ii) hereof and the last sentence of this Section 11(a)(iii), that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such second sentence and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended to be afforded by exercisability of the RightsRights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. Notwithstanding For purposes of this Section 11(a)(iii), the foregoing or anything in this Agreement to value of the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) Common Shares shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued the Current Per Share Market Price (as determined pursuant to Section 3 that represents 11(d)(i)) on the date of the Flip-In Event and the per share or fractional value of any Common Stock Equivalents shall be deemed to equal the Current Per Share Market Price of the Common Shares. The Board of Directors of the Company may, but shall not be required to, establish procedures to allocate the right to receive Common Shares upon exercise of the Rights beneficially owned by an Acquiring Person whose among holders of Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledthis Section 11(a)(iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares ("Equivalent Preferred Shares")) or securities convertible into the Common Stock) Preferred Shares or Equivalent Preferred Shares at a price per share of the Common Stock Preferred Share or Equivalent Preferred Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or Equivalent Preferred Shares) less than the current market price per share then Current Per Share Market Price of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares and Equivalent Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares and Equivalent Preferred Shares which the aggregate offering price of the total number of shares of the Common Stock Preferred Shares and/or Equivalent Preferred Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares and Equivalent Preferred Shares outstanding on such record date plus the number of additional shares of the Common Stock Preferred 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 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. Preferred Shares of the Common Stock and Equivalent Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the current market price per share then Current Per Share Market Price of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current market price per share Current Per Share Market Price (determined pursuant to Section 11(d)) of the Common StockPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For Except as otherwise provided herein, for the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market priceCurrent Per Share Market Price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, and for however, that in the purpose event that the Current Per Share Market Price of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" Security is determined during a period following the announcement by the issuer of a, share of Common Stock on any date shall besuch Security
Appears in 1 contract
Samples: Rights Agreement (Cryolife Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Rights Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and and/or the number and and/or kind of shares of capital stock issuable on such datedate upon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive upon payment of the then current Purchase Price the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred Shares transfer books of the Company were open, he the holder of the Right would have owned upon such exercise (and, in the case of a reclassification, would have retained after giving effect to such reclassification) and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Rights Agreement, in the event any Person shall become becomes an Acquiring Person, each holder of a Right 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementRights Agreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Rights Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledcanceled.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall take all such action as may be necessary to authorize additional Common Shares of the Company for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares of the Company, the Company shall substitute, for each Common Share of the Company that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that the current per share market price of one Preferred Share multiplied by such number or fraction is equal to the current per share market price of one Common Share of the Company as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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. Shares Agent and shall be binding on the Rights Agent and the holders of the Common Stock Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets assets, cash or stock (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or subscription rights rights, options 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 the numerator shall be the then current per share market price per share of the Common Stock Preferred Shares (as defined in determined pursuant to Section 11(d)) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose the determination of which shall be described in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets assets, cash or stock or evidences of indebtedness so to be distributed or of such subscription rights rights, options or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares (other than the Rights), or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to take into account ex-dividend trading or to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the NASDAQ or such other system then in use, or, if on any such date shall bethe Security is not quoted by any such organization, the average of the closing bid and asked
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a)
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring PersonPerson (a "Section 11(a)(ii) Event"), other than pursuant to any transaction set forth in Section 13(a), each holder of a Right Right, except as provided 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 per Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price per Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Common Shares of the Company (determined pursuant to Section 11(d)) on the date the Person became an Acquiring Person (such number of shares, 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 there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Trustees of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as "common stock equivalents")), (4) debt securities of the Company's , (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 the Board of Trustees of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Trustees of the Company; provided, however, if the Company shall not have made adequate provision to substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the date of the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Stock Shares (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 Trustees of the Company shall determine in good faith that it is likely that sufficient additional Common Shares might be authorized for issuance for 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 shareowner 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period to seek any authorization of additional Common 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights shall then be outstanding, the Company shall not take value of any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) "common stock equivalent" shall be void and any holder of deemed to have the same value as the Common Shares on such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelleddate.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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 Trustees of the Company, whose determination shall be described in a statement filed with the Rights Agent. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) on such record date, less the fair market value (as determined in good faith by the Board of Directors Trustees 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the 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 Quotations System ("NASDAQ") or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Trustees of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a share exchange, 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to the following paragraph and Section 24 of this Agreement, in the event any Person shall become an Acquiring PersonPerson (a “Section 11(a)(ii) Event”), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisableexercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after a Section 11(a)(ii) Event, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 or 6 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the “Spread”), and (B) with respect to each Right (subject to the second paragraph of Section 11(a)(ii)), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board has deemed to have the same value as Common Shares and which, in the written opinion of counsel addressed to such Board, may be issued without violating the representation in the sixth paragraph under the caption “Amendment of Articles of Incorporation to Authorize Preferred Stock” in the Company’s Proxy Statement for its 1998 Annual Meeting of Shareholders (such shares of preferred stock, hereinafter referred to as “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 the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, if the Company shall not have made adequate provision to substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 shall determine in good faith that it is likely that sufficient additional Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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 CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent. Shares Agent and shall be binding on the Rights Agent and holders of the Rights. Common Stock Shares owned by or held for the account of the Company or any Subsidiary 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at (it is understood that without creating any implication that an increase of more than such amount would cause a rate dividend to fail to satisfy such standard, an increase of not in excess to exceed one cent per share, appropriately adjusted to reflect any stock split, stock dividend of 125% of similar transaction occurring after the rate of the last date hereof, shall not cause a dividend not to be a regular quarterly cash dividend theretofore paid dividend) or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each day shall be the last sale price, regular way, reported at or prior to 4:00 P.M. Eastern time or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, reported at or prior to 4:00 P.M. Eastern time, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported at or prior to 4:00 P.M. Eastern time by the applicable reporting system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-ten-thousandths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one-ten-thousandths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-ten-thousandths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended to be afforded by exercisability of the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person has been temporarily suspended (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate with prompt written notice thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer Agent). The Board of Directors may, but shall not be required to, establish procedures to an Acquiring Person whose allocate the right to receive Common Stock and common stock equivalents upon exercise of the Rights would be void pursuant among holders of Rights, which such allocation may be, but is not required to the preceding sentence shall be cancelledbe, pro rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") National Market, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange a day on which the Nasdaq National Market is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market, a Business Day. If the Security is not publicly held or not so listed or traded, "current market price" shall mean the fair value as determined in good faith by a majority of the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 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).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of one- one hundredths of a share of Preferred Stock for which a Right is then
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-one hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such a number of shares, or units of shares, of (A) Common Stock, and (B) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, or fractional shares of preferred stock of the Company equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "Common Stock Equivalent"); provided, however, if there are unavailable (solely as a result of an insufficient number having been authorized, and not as a result of a delay in issuance, registration or otherwise) sufficient shares (or fractions of shares) of Common Stock and/or Common Stock Equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or Common Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of shareholders; and provided, further, that if the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of is unable to cause sufficient shares of Common Stock and/or Common Stock Equivalents to be available for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price issuance upon exercise in full of the Rights, then the Company's , to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to the Cash Equivalent Amount, as defined below, in lieu of issuing shares of Common Stock (determined and/or Common Stock Equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(d11(c), a majority of the Board of Directors may suspend the exercisability of the Rights for a period of up to sixty (60) hereof) on days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.the
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into the Common Preferred Stock or Equivalent Preferred Stock) , at a price per share of the Common Preferred Stock (or per share of Equivalent Preferred Stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or Equivalent Preferred Stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock on any date shall beExchange, as reported in the principal consolidated transaction reporting system
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) split or subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event”), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as “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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, 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 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. Common Shares of the Common 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 . In the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in . 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price" per, or "value" of a, share of price per Common Stock on any date Share. The closing price for each Trading Day shall bebe the last sale
Appears in 1 contract
Samples: Rights Agreement (First Business Financial Services, Inc.)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) split or subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a “Section 11(a)(ii) Event”), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares of the Company issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as “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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, 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 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. Common Shares of the Common 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 . In the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in . 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading 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 principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the OTC Bulletin Board or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Directors of the Company. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (First Business Financial Services, Inc.)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson (“Section 11(b) Event”), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-one hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the “number of Adjustment Shares”).
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-one hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a “common stock equivalent”); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock (“equivalent preferred stock”)) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current market price" per, or value ” of a, share any security (a “Security” for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "“current market price" per” shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 American Stock Exchange or, if the Security is not listed or admitted to trading on the American Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System (“Nasdaq”) National Market System, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date shall bethe Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security
Appears in 1 contract
Samples: Rights Agreement (Hearx LTD)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Series 4 Purchase Price or the Series 5 Purchase Price, as the case may be, the number and identity of shares covered by each WorldCom Right or MCI Right, as the case may be, and the number of WorldCom Rights or MCI Rights, as the case may be, outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, payable in shares of the Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, (Bii) subdivide the outstanding Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, (Ciii) combine the outstanding Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a WorldCom Right or MCI Right, as the case may be, shall be proportionately adjusted so that the holder of any WorldCom Right or MCI Right, as the case may be, exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such WorldCom Right or MCI Right, as the case may be, prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such WorldCom Right or MCI Right, as the case may be, had been exercised immediately prior to such date and at a time when the Common 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 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).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-thousandths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of Common WorldCom Group Stock of or MCI Group Stock, as the Company case may be, as shall equal the result obtained by (xy) multiplying the then current Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, by the then number of shares one one-thousandths of Common a share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of WorldCom Group Stock or MCI Group Stock, as the Company's Common Stock case may be (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient shares of WorldCom Group Stock or MCI Group Stock, as the case may be, issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Series 4 Purchase Price or the Series 5 Purchase Price, as the case may be, multiplied by the then number of one one-thousandths of a share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, for which a Right is then exercisable, in accordance with the terms of this Agreement, a number of shares, or units of shares, of (y) WorldCom Group Stock or MCI Group Stock, as the case may be, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of WorldCom Group Stock or MCI Group Stock, as the case may be, and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of WorldCom Group Stock or MCI Group Stock, as the case may be, or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of WorldCom Group Stock or MCI Group Stock, as the case may be, and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Series 4 Purchase Price or Series 5 Purchase Price (as adjusted pursuant to this Section 11), as the case may be, in lieu of issuing shares of WorldCom Group Stock or MCI Group Stock, as the case may be, and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common case may be (or securities having the same or more favorable rights, privileges and preferences as the Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be ("equivalent preferred stock")) or securities convertible into Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock) case may be, or equivalent preferred stock, at a price per share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock (case may be, or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) per share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, on such record date, the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, to be in effect after such record date shall be determined by multiplying the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, outstanding on such record date plus the number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, which the aggregate offering price of the total number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock so case may be, or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, outstanding on such record date plus the number of additional shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, 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 or warrants are not so issued, the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, shall be adjusted to be the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, which would then be in effect if such record date has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) hereof), the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, to be in effect after such record date shall be determined by multiplying the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) for one share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the case may be, on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stock case may be, and the denominator of which the denominator shall be such current market price per for one share of Series 4 Preferred Stock or Series 5 Preferred Stock, as the Common Stockcase may be. 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 Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, shall again be adjusted to be the Series 4 Purchase Price or Series 5 Purchase Price, as the case may be, which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the Nasdaq National Market System, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange a day on which the Nasdaq National Market System is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, a Business Day. If the Security is not publicly held or not so listed or traded, "current market price" shall mean the fair value as determined in good faith by a majority of the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Samples: Rights Agreement (Worldcom Inc/ga//)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares of Class A Common 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Class A Common Stock or Class B Common Stock payable in shares of the Class A Common Stock or Class B Common Stock, (B) subdivide the outstanding Class A Common Stock or Class B Common Stock, (C) combine the outstanding Class A Common Stock or Class B Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Class A Common Stock or Class B Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporationor surviving entity), 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of for the Company Common Shares 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii).
(ii) In less than the event any Person shall become an Acquiring Person, each holder aggregate par value of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock capital stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number issuable upon exercise of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledone Right.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be
Appears in 1 contract
Samples: Rights Agreement (Starrett L S Co)
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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock of the Company payable in shares of Common Stock of the Common StockCompany, (B) subdivide the outstanding Common StockStock of the Company, (C) combine the outstanding Common Stock of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Common Stock or capital stock 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 receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to to, but not including, such date and at a time when the Common Stock (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 Section 11(a)(ithis Section
(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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date, an Acquiring PersonPerson except as the result of a transaction set forth in Section 13(a) hereof, then proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price for a full share of Common Stock by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Current Market Price per share of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of the event described above in this subparagraph (ii) (such number of shares is hereinafter referred to as the “Adjustment Shares”), provided that the Purchase Price orand 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) If (x) the number of shares of Common Stock which are authorized by the Company’s certificate of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), or (y) any regulatory approvals necessary for the issuance of such Common Stock have not been obtained by the Company, or (z) the issuance of Common Stock of the Company shall not then be permitted under the Company’s certificate of incorporation or any applicable law or administrative or judicial regulation or order, the Company shall (A) determine the excess of (1) the product obtained by multiplying the then Current Market Price by the number of 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, but subject to Section 9 hereof and, if less than and to the extent required, to the receipt by the Company of any necessary regulatory approvals, 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) other equity securities of the then current per share market price Company (including, without limitation, shares of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, “Common Stock Equivalents”)), (4) debt securities of the Company's , (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 the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s rights of redemption pursuant to Section 23(a) expire (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available and subject to receipt by the Company of any necessary regulatory approvals) 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 Common Stock could be authorized for issuance upon exercise in full of the Rights and that any necessary regulatory approvals for such issuance could be obtained, 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 stockholder approval for the authorization of such additional shares and/or regulatory approvals for the issuance 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 and/or additional regulatory approvals obtained pursuant to the first and/or second sentences of this subparagraph (iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to obtain any required regulatory approvals and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement and shall 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 subparagraph (iii), the value of the Common Stock shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person Section 11(a)(ii) Trigger Date and the Rights value of any Common Stock Equivalent shall then be outstanding, deemed to be the same as the value of Common Stock on such date. The Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to give the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to notice of the preceding sentence shall be cancelledselection of any Common Stock Equivalent under this subparagraph (iii).
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock of the Company entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Stock of the Company (or securities having substantially the same rights, privileges and preferences as the shares of Common Stock (“Equivalent Common Stock”) or securities convertible into the Common Stock or Equivalent Common Stock) at a price per share of the Common Stock or Equivalent Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common Stock or Equivalent Common Stock) less than the current market price per share of the Common Stock Current Market Price (as defined in Section 11(d)) per share of Common Stock or Equivalent Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock or Equivalent Common Stock which the aggregate offering price of the total number of shares of the Common Stock or Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price Current Market Price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or Equivalent Common Stock 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 in a 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 AgentAgent and shall be conclusive for all purposes. Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock of the Company (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price Current Market Price per share of the Common Stock (as defined in Section 11(d)) 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 AgentAgent and shall be conclusive for all purposes) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of the Common Stock and of which the denominator shall be such current market price Current Market Price per share of the Common Stock; 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. 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.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "current market price" per, or value of a, “Current Market Price” per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defineddefined in this paragraph (d)) immediately prior to, but not including, such date and, for purposes of computations made pursuant to such date, and for the purpose of any computation in Section 11(a)(ii11(a)(iii) and Section 13hereof, the "current market price" per, or "value" of a, Current Market Price per share of Common Stock on any date shall bebe deemed to be the average of the daily closing prices per share of such Common Stock for the five (5) consecutive Trading Days immediately following, but not including, such date; provided, however, that in the event that the Current Market Price per share of 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 thirty (30) Trading Day or five (5) 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
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to the following paragraph and Section 24 of this Agreement, in the event any Person shall become an Acquiring PersonPerson (a “Section 11(a)(ii) Event”), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to two times the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisableexercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying two times the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after a Section 11(a)(ii) Event, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 or 6 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the “Spread”), and (B) with respect to each Right (subject to the second paragraph of Section 11(a)(ii)), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board has deemed to have the same value as Common Shares and which, in the written opinion of counsel addressed to such Board, may be issued without violating the representation in the sixth paragraph under the caption “Amendment of Articles of Incorporation to Authorize Preferred Stock” in the Company’s Proxy Statement for its 1998 Annual Meeting of Shareholders (such shares of preferred stock, hereinafter referred to as “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 the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, if the Company shall not have made adequate provision to substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 shall determine in good faith that it is likely that sufficient additional Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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 CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at (it is understood that without creating any implication that an increase of more than such amount would cause a rate dividend to fail to satisfy such standard, an increase of not in excess to exceed one cent per share, appropriately adjusted to reflect any stock split, stock dividend of 125% of similar transaction occurring after the rate of the last date hereof, shall not cause a dividend not to be a regular quarterly cash dividend theretofore paid dividend) or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the 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 Quotations System (“Nasdaq”) or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
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 shares, or fractions thereof, purchasable upon exercise of each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date first public announcement by the Company of the adoption of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a share exchange, consolidation or merger in which the Company is the continuing corporationor surviving Person), 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 capital stock of the Company issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock of the Company which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24, in the event any Person shall become becomes an Acquiring Person, then, promptly following the occurrence of such event, proper provision shall be made so that, upon expiration of the Redemption Period, each holder of a Right (except as provided in this Section 11(a)(ii)) shall thereafter have a right to receive, upon exercise thereof thereof, at a price equal to the then current Purchase Price multiplied by the number of shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof)) on the date on which of the occurrence of such event. After the Distribution Date and as long as any Person shall Rights are outstanding (other than Rights that have become an Acquiring Person. In the event that any Person shall become an Acquiring Person null and the Rights shall then be outstandingvoid pursuant to this Section 11(a)(ii)), the Company shall not not, except as permitted by Section 23, Section 24, or Section 27 4872-4688-7820.9 hereof, take (or permit any Subsidiary to take) any action which if at the time such action is taken it is reasonably foreseeable that such action would eliminate or substantially diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, from and after the time a Person becomes an Acquiring Person, any Rights that are or were acquired or beneficially owned Beneficially Owned by (A) any Acquiring Person (or any Associate or Affiliate Related Person of such Acquiring Person), (B) a transferee of an Acquiring Person (or of any such Related Person) who becomes a transferee after the Acquiring Person becomes an Acquiring Person, or (C) a transferee of an Acquiring Person (or of any such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming an Acquiring Person and receives such Rights pursuant to either (1) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights or (2) a transfer that the Board has determined is part of a plan, agreement, arrangement, or understanding that has as a primary purpose or effect the avoidance of this Section 11(a)(ii), shall be null and void without any further action, and any no holder of such Rights shall thereafter have no any rights whatsoever with respect to such Rights, including, without limitation, the right to exercise such Rights Rights, under any provision of this AgreementAgreement or otherwise. Neither the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Related Persons or transferees hereunder. No Right Certificate shall be issued pursuant to Section 3 or Section 6 that represents Rights beneficially owned by an Acquiring Person whose Rights would be that have become null and void pursuant to the preceding sentence or any Associate or Affiliate thereofthis Section 11(a)(ii); no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be have become null and void pursuant to the preceding sentence this Section 11(a)(ii) or any Associate or Affiliate Related Person thereof or to any nominee of such Acquiring Person, Associate Related Person ,or Affiliatewith respect to any Common Shares otherwise deemed to be Beneficially Owned by any of the foregoing; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person, any of its Related Persons, or other Person whose Rights would be have become null and void pursuant to the preceding sentence this Section 11(a)(ii) shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with subparagraph (ii) above, the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares, the Company shall substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of preferred shares or fraction thereof such that the current per share market price of 4872-4688-7820.9 one preferred share multiplied by such number or fraction is equal to the current per share market price of one Common Share as of the date of issuance of such preferred shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 forty five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent. Shares Agent and shall be binding on the Rights Agent and holders of the Common Stock Rights. Preferred Shares owned by or held for the account of the Company or any Subsidiary 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 and, in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing corporationor surviving Person) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then-current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred Shares on such record date, 4872-4688-7820.9 less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such then-current per share market price per share of the Common StockPreferred Shares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and 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.
(d) For the purpose of any computation under hereunder other than computations made pursuant to Section 11(b) or (c) hereof11(a)(iii), the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date and for purposes of computations made pursuant to Section 11(a)(iii), the “current per share market price” of any security shall be deemed to be the average of the daily closing prices per share of such Security for the ten (10) consecutive Trading Days immediately following but not including such date; provided, however, that, in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or Securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of thirty (30) Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, regular way, reported at or "value" prior to 4:00 P.M. Eastern time or, in case no such sale takes place on such day, the average of athe bid and asked prices, share regular way, reported as of Common Stock 4:00 P.M. Eastern time, in either case, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the Nasdaq Global Select Market or, if the Security is not listed or admitted to trading on the Nasdaq Global Select Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported as of 4:00 P.M. Eastern time by the National Association of Securities Dealers or such other system then in use, or, if on any such date shall bethe Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board. The 4872-4688-7820.9
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a) each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"Adjustment Shares"). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes and Acquiring Person (a "Section 11(a)(ii) Event"), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon the exercise of the Rights) 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 payable with respect to such Right (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as "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 the Board of Directors of the Company based upon the advice of a reputable regional investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent" shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to and not including such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the 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 Quotations System ("Nasdaq") or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading or Nasdaq, as the case may be, is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall national securities exchange or Nasdaq, as the case may be, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Fresh Brands Inc)
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. (a)
(i) In Anything in this Agreement to the contrary notwithstanding, in the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares (by reverse stock split or otherwise) or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were opendate, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to the following paragraph of this subparagraph (ii) and to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, each holder of a Right 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 shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-thousandths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's ’s Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any such Person shall become became an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which that would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such an event, any Rights that are or were acquired or beneficially owned by any an Acquiring Person (or any Associate or Affiliate of such Acquiring Person) on or after the earlier of (x) the date of such event and (y) the Distribution Date shall be null and void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof shall be cancelledcanceled.
(iii) In the event that the number of Common Shares which are authorized by the Company’s certificate of incorporation and not outstanding or subscribed for, or reserved or otherwise committed for issuance for purposes other than upon exercise of the Rights, are not sufficient to permit the holder of each Right to purchase the number of Common Shares to which he would be entitled upon the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of paragraph (a) of this Section 11, or should the Board of Directors so elect, the Company shall: (A) determine the excess of (1) the value of the Common Shares issuable upon the exercise of a Right (calculated as provided in the last sentence of this subparagraph (iii)) pursuant to Section 11(a)(ii) hereof (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 such Common Shares, upon payment of the applicable Purchase Price, any one or more of the following having an aggregate value determined by the Board of Directors to be equal to the Current Value: (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has determined to have the same value as Common Shares (such shares or units of shares of preferred stock, “common stock equivalents”)), (4) debt securities of the Company, or (5) other assets; 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 first occurrence of an event triggering the rights to purchase Common Shares described in Section 11(a)(ii) (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, Common Shares (to the extent available) and then, if necessary, cash, which shares and cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares 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 stockholder 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 (x) shall provide, subject to Section 7(e) hereof and the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall make a public announcement, and shall deliver to the Rights Agent a statement, stating that the exercisability of the Rights has been temporarily suspended. At such time as the suspension is no longer in effect, the Company shall make another public announcement, and deliver to the Rights Agent a statement, so stating. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d)(i) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any common stock equivalent shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares entitled to the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) on such record date, the Purchase Price to be in effect after such record date shall be determined adjusted by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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 written statement filed with the Rights Agent. Preferred Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall shall, at any time after the date of this Agreement, fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 written 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after but not including the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, or "value" regular way, or, in case no such sale takes place on such day, the average of a, share of Common Stock on any date shall bethe closing bid and asked
Appears in 1 contract
Samples: Rights Agreement (Bill Barrett 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding shares of Common Stock, (C) combine the outstanding shares of Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification or recapitalization of the Common Stock (including any such reclassification or recapitalization in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and in Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination combination, reclassification or reclassificationrecapitalization, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock stock, other securities and/or property which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination combination, reclassification or reclassificationrecapitalization; PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right. If an event occurs which would require an adjustment under both 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 to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event that at any Person time after the date hereof, any Person, alone or together with its Affiliates and Associates, shall become an Acquiring Person, Person then proper provision shall be made so that each holder of a Right Right, except as provided 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price for one share of the Company's Common Stock (determined pursuant to Section 11(d) hereof)) on the date on which any Person of the occurrence of the event set forth above in this subparagraph (ii) (such number of shares being referred to as the "number of Adjustment Shares"); PROVIDED, HOWEVER, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall become an Acquiring Person. apply and no adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) or, if any Person shall become an Acquiring Person regulatory approvals for the issuance of such Common Stock has not been obtained by the Company, and the Rights shall then be outstandingbecome so exercisable, the Company shall not take notwithstanding any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any other provision of this Agreement. No , to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which it is a party, the Company shall, with respect to each Right, make adequate provision to substitute upon exercise of such Right Certificate shall be issued to the extent necessary and on a pro rata or such other basis as the Company deems appropriate, (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company (including without limitation shares or units of shares of preferred stock or other securities), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the "current per share market price" (as determined pursuant to Section 3 that represents Rights beneficially owned 11(d) hereof) of the Common Stock for which such Right is otherwise exercisable, where such aggregate value has been determined by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time Board of Directors of the Company based upon the transfer advice of any Rights to an Acquiring Person whose Rights would be void pursuant to a nationally recognized investment banking firm selected by the preceding sentence or any Associate or Affiliate thereof or to any nominee Board of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to Directors of the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledCompany.
(b) In the case the Company shall fix a record date is fixed by the Company or otherwise established for the issuance of rights rights, options or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) per share of Common 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Shares of the Common 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 fixedfixed or established; and in the event that such rights 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 has had not been fixedfixed or established.
(c) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or dividend), assets (other than a dividend payable in Common Stock, but including any dividend payable in stock other than Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the current market price per share of the Common Stock (as defined in Section 11(d)) per share of Common Stock on such record date, less the fair market value (as determined in reasonably and with good faith to the holders of Rights by the Board 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) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to distributable in respect of one share of the Common Stock and the denominator of which the denominator shall be such the current market price per share of the Common Stock; 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. 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, per share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that in the event that the current market price per share of Common Stock is determined during a period following the announcement by the issuer of the Common Stock of (i) a dividend or distribution on the Common Stock payable in shares of Common Stock or securities convertible into shares of Common Stock or (ii) any subdivision, combination or reclassification of the Common Stock, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the purpose of any computation record date for such subdivision, combination or reclassification, as the case may be, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per common share equivalent. 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 "value" of aadmitted to trading on the New York Stock Exchange or, share if the shares of Common Stock are not listed or admitted to trading on any date shall bethe New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).been
(ii) In Subject to Section 24 of this Agreement, in the event that any Person shall should become an a Twenty Percent Acquiring Person, each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an a Twenty Percent Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish From and after the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned by any Twenty Percent Acquiring Person (or any Associate or Affiliate of such Twenty Percent Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an a Twenty Percent Acquiring Person Person, whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an a Twenty Percent Acquiring Person Person, whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Twenty Percent Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an a Twenty Percent Acquiring Person Person, whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or securities convertible into the Common Stock) Shares at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in 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. Shares of the Common 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 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 has not been fixed.or
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.subscription
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beShares on
Appears in 1 contract
Samples: Rights Agreement (Suffolk Bancorp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Preferred Shares payable in shares of the Common StockPreferred Shares, (B) subdivide the outstanding Common StockPreferred Shares, (C) combine the outstanding Common Stock Preferred Shares into a smaller number of shares Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a share exchange, 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 hereof, in the event any Person shall become becomes an Acquiring Person, each holder of a Right 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void without any further action, and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this AgreementAgreement or otherwise. Neither the Company nor the Rights Agent shall have liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. No Right Certificate shall be issued pursuant to Section 3 hereof that represents Rights beneficially owned Beneficially Owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or AffiliateAffiliate or with respect to any Common Shares otherwise deemed to be Beneficially Owned by any of the foregoing; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or other Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the Rights in accordance with subparagraph (ii) above, the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights. In the event the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares, the Company shall substitute, for each Common Share that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that the current per share market price of one Preferred Share multiplied by such number or fraction is equal to the current per share market price of one Common Share as of the date of issuance of such Preferred Shares or fraction thereof.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common Stock 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 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. Shares Agent and shall be binding on the Rights Agent and holders of the Common Stock Rights. Preferred Shares owned by or held for the account of the Company or any Subsidiary 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 and, in the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then-current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 AgentAgent and shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Preferred Share and the Common Stock and denominator of which the denominator shall be such then-current per share market price per share of the Common StockPreferred Shares on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, and for however, that, in the purpose event that the current per share market price of any computation the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in Section 11(a)(ii) and Section 13, the "current market price" pershares of such Security or Securities convertible into such shares, or "value" of a(B) any subdivision, share of Common Stock on any date shall becombination
Appears in 1 contract
Samples: Rights Agreement (Alexanders J Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 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).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-one hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-one hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") National Market System, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the NASDAQ National Market System, the average of the high bid and low asked prices in the over-the-counter market, as reported by NASDAQ or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange a day on which the NASDAQ National Market System is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange or included in the NASDAQ National Market System, a Business Day. If the Security is not publicly held or not so listed or traded, "current market price" shall mean the fair value as determined in good faith by a majority of the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Samples: Rights Agreement (Kentucky Electric Steel Inc /De/)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one one-hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of shareholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person issue a public announcement (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate with prompt notice thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer Agent) stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not be required to, establish procedures to an Acquiring Person whose allocate the right to receive Common Stock and common stock equivalents upon exercise of the Rights would be void pursuant among holders of Rights, which such allocation may be, but is not required to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable preferences, limitations or relative rights as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after but not including the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price, or "value" regular way, or, in case no such sale takes place on such day, the average of athe closing bid and asked prices, share of Common Stock on any date shall beregular way, in either case as reported in the principal consolidated transaction reporting system with respect to
Appears in 1 contract
Samples: Rights Agreement (Ns Group Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Ordinary Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Ordinary Shares payable in shares of the Common StockOrdinary Shares, (B) subdivide the outstanding Common StockOrdinary Shares, (C) combine consolidate the outstanding Common Stock Ordinary Shares into a smaller number of shares Ordinary Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Ordinary Shares (including any such reclassification in connection with a consolidation share exchange, consolidation, merger or merger scheme of arrangement in which the Company is the continuing corporationor surviving entity), 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 consolidation or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Ordinary 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 consolidation or reclassification. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock or fractions of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 hereof, in the event any Person shall become becomes an Acquiring Person, each holder of a Right 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 shares of Common Stock for which a such Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Ordinary Shares of the Company as shall equal the result obtained by dividing (xA) multiplying the then current Purchase Price by the then number (B) 50% of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock Ordinary Shares of the Company (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In of the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate occurrence of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall be)
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock Shares 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 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).
(ii) In Subject to Section 24 of this Agreement, in the event any Person shall become becomes an Acquiring Person, the proper provision shall be made so that each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by of which an Acquiring Person whose is the Beneficial Owner if such Acquiring Person's Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges and preferences as the Common Stock Shares ("equivalent common shares")) or securities convertible into the Common Stock) Shares or equivalent common shares at a price per Common Share or equivalent common share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or equivalent common shares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of Common Shares and/or equivalent common shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional Common Shares and/or equivalent common shares of the Common 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares. 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") Stock Market or, if the Security is not listed or admitted to trading on The Nasdaq Stock Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Security is not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Mining Services International 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing 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 capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event any Person shall become an Acquiring Person, each holder of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall becurrent
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 property covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares (by reverse stock split or otherwise) into a smaller number of shares Common Shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), then, in each such event, except as otherwise provided in this Section 11(a) and Section 7(e) hereof, : (1) each of the Purchase Price in effect Rights outstanding at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassificationreclassification shall be proportionately adjusted to that number of Rights (calculated to the nearest one ten-thousandth (1/10,000) of a Right) equal to a fraction (the "EXCHANGE RATIO"), the numerator of which shall be the total number of Common Shares or shares of capital stock outstanding immediately following such subdivision, combination or reclassification and the denominator of which shall be the total number of Common Shares outstanding immediately prior to such time, and the number and kind of shares Rights that shall thereafter be issued with respect to each Common Share or share of such other capital stock issuable on such date, that shall become outstanding thereafter prior to the Distribution Date shall be proportionately adjusted so that equal to the holder of any Right exercised after such time shall be entitled to receive the aggregate total number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).of
(ii) In Subject to Section 24 of this Agreement, in the event any Person a Triggering Event shall become an Acquiring Personhave occurred, then promptly following such Triggering Event, proper provision shall be made so that each holder of a Right Right, except as provided in Section 7(e) hereof, shall thereafter have a the right to receivereceive for each Right, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and payment of the then-current Total Exercise Price, in lieu of a number of one-thousandths of a Preferred Share, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of shares one-thousandths of Common Stock a Preferred Share for which a Right is then was exercisable (or would have been exercisable if the Distribution Date had occurred) immediately prior to the first occurrence of a Triggering Event, and dividing that product by (y) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) for Common Shares on the date of occurrence of the Triggering Event (such number of shares being hereinafter referred to as the "ADJUSTMENT SHARES").
(iii) The right to buy Common Shares of the Company pursuant to Section 11(a)(ii) hereof shall not arise as a result of any Person becoming an Acquiring Person through an acquisition of Common Shares pursuant to a Permitted Offer.
(iv) In lieu of issuing Common Shares in accordance with Section 11(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 Common Shares which are authorized by the Company's Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights, or if any necessary regulatory approval for such issuance has not been obtained by the Company, the Company shall): (A) determine the excess of (1) the value of the Common 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 such -14- 18 Common Shares, upon exercise of the Rights, (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company (including, without limitation, shares or units of shares of any series of preferred stock which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares or units of shares of preferred stock are herein called "common stock equivalents")), except to the extent that the Company has not obtained any necessary stockholder or regulatory approval for such issuance, (4) debt securities of the Company, except to the extent that the Company has not obtained any necessary stockholder or regulatory approval for such issuance, (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 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 Triggering Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "SECTION 11(A)(II) TRIGGER DATE"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Shares (to the extent available), except to the extent that the Company has not obtained any Person necessary stockholder or regulatory approval for such issuance, 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 become an Acquiring Persondetermine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights or that any necessary regulatory approval for such issuance will be obtained, 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 stockholder approval for the authorization of such additional shares or take action to obtain such regulatory approval (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)(iv), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to take any action to obtain any required regulatory approval 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 that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended to be afforded by exercisability of the RightsRights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. Notwithstanding For purposes of this Section 11(a)(iv), the foregoing or anything in this Agreement to value of the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) Common Shares shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued the current per share market price (as determined pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to 11(d) hereof) of the preceding sentence or Common Shares on the Section 11(a)(ii) Trigger Date and the value of any Associate or Affiliate thereof; no Right Certificate "common stock equivalent" shall be issued at any time upon deemed to have the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to same value as the preceding sentence or any Associate or Affiliate thereof or to any nominee of Common Shares on such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelleddate.
(b) In the case the Company shall shall, at any time after the date of this Agreement, fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares or of any class or series of Equivalent Shares entitling them such holders (for a period expiring within 45 forty-five (45) calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or Equivalent Shares or securities convertible into the Common Stock) Shares or Equivalent Shares at a price per share (or having a
(c) In case the Company shall, at any time after the date of this Agreement, fix a record date for the making of a distribution to all holders of the Common Stock Shares or of any class or series of Equivalent Shares (including any such distribution made in connection with a consolidation or having merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a conversion price per share of the Common Stockregular quarterly cash dividend, if any, or a security is convertible into the dividend payable in Common StockShares) less than the current market price per share of the Common Stock or subscription rights, options or warrants (as defined excluding those referred to in Section 11(d11(b)) on ), then, in each such record datecase, 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 the numerator shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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. Shares of the Common 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 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 has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in determined pursuant to Section 11(d)) hereof) of a Common Share or an Equivalent Share on such record date, less the fair market value per Common Share or Equivalent Share (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of a Common Share or Equivalent Share, as the Common Stock case may be, and the denominator of which the denominator shall be such current market price per share (as determined pursuant to Section 11(d) hereof) of the a Common StockShare or Equivalent Share on such record date. 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 have been in effect if such record date had not been fixed.
(d) For the purpose of any computation under hereunder, other than computations made pursuant to Section 11(b) or (c11(a)(iv) hereof, the "current per share market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the security (a "current market price" per, or SECURITY"value" of a, share of Common Stock on any date shall be
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. (a) The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are shall be subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement Agreement:
(A) declare Declare a dividend on the Common Stock Preferred Shares payable in shares of the Common Stock, Preferred Shares;
(B) subdivide Subdivide the outstanding Common Stock, Preferred Shares;
(C) combine Combine the outstanding Common Stock Preferred Shares into a smaller number of shares or Preferred Shares; or
(D) issue Issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right Rights exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right Rights had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event any Person event:
(A) A Trigger Event shall become have occurred (other than through an acquisition described in subparagraph (iii) of this paragraph (a)); or
(B) During such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization or reorganization of the Company or other transaction or series of transactions involving the Company which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries beneficially owned by any Acquiring Person or any Affiliate or Associate thereof, each holder of a Right 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company (such number of shares being referred to herein as the “Adjustment Shares”) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable exercisable, and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's ’s Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of the earliest of the events described in clauses (A) and (B) above. In From and after the event that any Person shall become an Acquiring Person occurrence of the earliest of the events described in clauses (A) and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary(B) above, any Rights that are or were acquired or are or were beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void and any holder of such Rights (including any subsequent transferee) shall thereafter have no right whatsoever with respect to exercise such Rights under any provision of this Agreement. No Right Rights Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any representative, nominee, Associate or Affiliate thereof; no Right Rights Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Rights Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any representative, nominee, Associate or Affiliate thereof, shall be cancelled. The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the representative or nominee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the representative or nominee of any of the foregoing unless and until it shall have received such notice.
(iii) The right to buy Common Shares of the Company pursuant to subparagraph (ii) of this paragraph (a) shall not arise as a result of any Person becoming an Acquiring Person through a purchase of Common Shares pursuant to a tender offer made in the manner prescribed by Section 14(d) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that such tender offer shall provide for the acquisition of all of the outstanding Common Shares held by any Person other than such Acquiring Person and its Affiliates or Associates at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment or financial advisers, to be (A) fair to shareholders, taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value, and (B) otherwise in the best interests of the Company and its shareholders, employees, customers and communities in which the Company does business.
(iv) In the event that there shall not be sufficient Common Shares authorized but unissued 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 being hereinafter referred to as the “Spread”); and
(B) With respect to each Right, make adequate provision to substitute for such unavailable Adjustment Shares either (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company, including without limitation, Preferred Shares, (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing having, together with the Adjustment Shares issued upon exercise of such Right, an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a reputable investment banking firm selected by the Board of Directors of the Company. Notwithstanding the provisions of the preceding paragraph, if, within 30 days following the date of the occurrence of the earliest of the events described in clauses (A) and (B) of Section 11(a)(ii) above, the Company shall have not made adequate provision to deliver value pursuant to clause (B) above, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Shares (to the extent such shares are available) and then, if necessary, cash or Preferred Shares, 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 Common Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 120 days following the date of the occurrence of the earliest of the events described in clauses (A) and (B) of Section 11(a)(ii) above, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, hereinafter referred to as the “Substitution Period”). To the extent that the Company determines that action needs be taken pursuant to the first and/or second sentences of this Section 11(a)(iv), the Company (x) shall provide, subject to Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iv), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) per Common Share on the date of the occurrence of the earliest of the events described in clauses (A) and (B) of Section 11(a)(ii) above.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock Preferred Shares (as defined in Section 11(d)) hereof) 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common 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 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. Preferred Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or subscription rights rights, options 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares. 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.
(d) For the purpose of any computation under Section 11(bhereunder:
(i) or (c) hereof, the "The “current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 20 consecutive Trading Days (as such term is hereinafter defined) immediately prior to to, but not including, such date. In the event that the current per share market price of the Security is determined:
(A) During a period following the announcement by the issuer of such Security of:
(1) A dividend or distribution on such Security payable in shares of such Security or securities convertible into such Security; or
(2) Any subdivision, combination or reclassification of such Security, and
(B) Prior to, but not including, the expiration of 20 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price" perprice per share equivalent of such Security. The closing price for each day shall be the last sale price or, in case no such sale takes place on such day, the average of the closing bid and asked prices in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last reported trade in the over-the-counter market, as reported by the Nasdaq Global Market (“Nasdaq”) or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Company. If on any such date no such market maker is making a market in the Security, the fair value of the Security on such date as determined in good faith by the Board of Directors of the Company shall bebe used.
Appears in 1 contract
Samples: Shareholder Protection Rights Agreement (Monterey Gourmet Foods)
Adjustment of Purchase Price, Number of Shares or Number of Rights. (a) The Purchase Price, the number of shares Preferred Shares covered by each Right and the number of Rights outstanding are shall be subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement Agreement:
(A) declare Declare a dividend on the Common Stock Preferred Shares payable in shares of the Common Stock, Preferred Shares;
(B) subdivide Subdivide the outstanding Common Stock, Preferred Shares;
(C) combine Combine the outstanding Common Stock Preferred Shares into a smaller number of shares or Preferred Shares; or
(D) issue any shares of its capital stock in a reclassification of the Common Stock Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right Rights exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right Rights had been exercised immediately prior to such date and at a time when the Common Stock Preferred 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 ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), shall the adjustment provided for in this Section 11(a)(i) shall consideration to be in addition to, and shall paid upon the exercise of one Right be made prior to any adjustment required pursuant to Section 11(a)(ii)less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event any Person event:
(A) A Trigger Event shall become have occurred (other than through an acquisition described in subparagraph (iii) of this paragraph (a)); or
(B) During such time as there is an Acquiring Person, there shall be. any reclassification of securities (including any reverse stock split), or recapitalization or reorganization of the Company or other transaction or series of transactions involving the Company which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries beneficially owned by any Acquiring Person or any Affiliate or Associate thereof, each holder of a Right 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 shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of Preferred Shares, such number of shares of Common Stock Shares of the Company (such number of shares being referred to herein as the “Adjustment Shares”) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredths of Common Stock a Preferred Share for which a Right is then exercisable exercisable, and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's ’s Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of the earliest of the events described in clauses (A) and (B) above. In From and after the event that any Person shall become an Acquiring Person occurrence of the earliest of the events described in clauses (A) and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary(B) above, any Rights that are or were acquired or are or were beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void and any holder of such Rights Bights (including any subsequent transferee) shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Rights Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof; , no Right Rights Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Rights Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence shall be cancelledcanceled. The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing unless and until it shall have received such notice.
(iii) The right to buy Common Shares of the Company pursuant to subparagraph (ii) of this paragraph (a) shall not arise as a result of any Person becoming an Acquiring Person through a purchase of Common Shares pursuant to a tender offer made in the manner prescribed by Section 14(d) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that such tender offer shall provide for the acquisition of all of the outstanding Common Shares held by any Person other than such Acquiring Person and its Affiliates or Associates at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment or financial advisers, to be (A) fair to shareholders, taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value, and (B) otherwise in the best interests of the Company and its shareholders, employees, customers and communities in which the Company does business.
(iv) In the event that there shall not be sufficient Common Shares authorized but unissued 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 being hereinafter referred to as the “Spread”); and
(B) With respect to each Right, make adequate provision to substitute for such unavailable Adjustment Shares either (1) cash, (2) a reduction in the Purchase Price, (3) other equity securities of the Company, including without limitation, Preferred Shares, (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing having, together with the Adjustment Shares issued upon exercise of such Right, an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of a reputable investment banking firm selected by the Board of Directors of the Company. Notwithstanding the provisions of the preceding paragraph, if, within 30 days following the date of the occurrence of the earliest of the events described in clauses (A) and (B) of Section 11(a)(ii) above, the Company shall have not made adequate provision to deliver value pursuant to clause (B) above, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Common Shares (to the extent such shares are available) and then, if necessary, cash or Preferred Shares, 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 Common Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 120 days following the date of the occurrence of the earliest of the events described in clauses (A) and (B) of Section 11(a)(ii) above, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, hereinafter referred to as the “Substitution Period”). To the extent that the Company determines that action needs be taken pursuant to the first and/or second sentences of this Section 11(a)(iv), the Company (x) shall provide, subject to Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect (with prompt written notice thereof to the Rights Agent). For purposes of this Section 11(a)(iv), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) per Common Share on the date of the occurrence of the earliest of the events described in clauses (A) and (B) of Section 11(a)(ii) above.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the Common Stock same rights privileges and preferences as the Preferred Shares (“equivalent preferred shares”) or securities convertible into the Common Stock) Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockPreferred Shares or equivalent preferred shares) less than the then current per share market price per share of the Common Stock (as defined in Section 11(d)) of the Preferred Shares 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 the numerator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of shares of the Common Stock Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares of the Common 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 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. Preferred Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockPreferred Shares) or 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Preferred 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 share of Preferred Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockPreferred Shares. 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.
(d) For the purpose of any computation under Section 11(bhereunder:
(i) or (c) hereof, the "The “current per share market price" per, or value ” of a, share any security (a “Security” for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 20 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date. In the event that the current per share market price of the Security is determined:
(A) During a period following the announcement by the issuer of such Security of:
(1) A dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares; or
(2) Any subdivision, combination or reclassification of such Security, and
(B) Prior to the expiration of 20 Trading Days after but not including the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and for the purpose of any computation in Section 11(a)(ii) and Section 13each such case, the "current per share market price shall be appropriately adjusted to reflect the current market price" perprice per share equivalent of such Security. The closing price for each day shall be the last sale price or, in case no such sale takes place on such day, the average of the closing bid and asked prices in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last reported trade in the over-the-counter market, as reported by the Nasdaq Stock Market (“Nasdaq”) or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Company. If on any such date no such market maker is making a market in the Security, the fair value of the Security on such date as determined in good faith by the Board of Directors of the Company shall bebe used.
Appears in 1 contract
Samples: Shareholder Protection Rights Agreement (North Valley Bancorp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) split or subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In Subject to the following paragraph and Section 24, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a) (a “Section 11(a)(ii) Event”), each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price per full Common Share multiplied by the number of shares of Common Stock Shares for which a Right is then exercisableexercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price per full Common Share by the then number of shares of Common Stock Shares for which a Right is then exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights“Adjustment Shares”). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after a Section 11(a)(ii) Event, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 or 6 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled. The Company shall use all reasonable efforts to ensure that the provisions of this paragraph are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payable with respect to such Right (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, if any, which the Board has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as “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 the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, if the Company shall not have made adequate provision to substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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 any portion of the Purchase Price, Common Shares (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 shall determine in good faith that it is likely that sufficient additional Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share Common Share of the Common Stock Company (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, 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 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 CompanyBoard, whose determination shall be described in a statement filed with the Rights Agent. Common Shares of the Common 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 . In the event that such rights 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at (it is understood that without creating any implication that an increase of more than such amount would cause a rate dividend to fail to satisfy such standard, an increase of not in excess to exceed one cent per share, appropriately adjusted to reflect any stock split, stock dividend of 125% of similar transaction occurring after the rate of the last date hereof, shall not cause a dividend not to be a regular quarterly cash dividend theretofore paid dividend) or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) on such record date, less the fair market value (as determined in good faith by the Board of Directors of the CompanyBoard, 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in . 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current per share market price" per, or value of a, share ” of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading 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 principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, or, if on any such date the Common Shares are not quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board. The term “Trading Day” shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Ladish Co Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(iA) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to to, any adjustment required pursuant to Section 11(a)(ii).
(iii) In Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof)) on the date on which any the Person shall become an Acquiring Person. In the event that any Person shall become became an Acquiring Person and the Rights shall then be outstanding(such number of shares, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights"Adjustment Shares"). Notwithstanding the foregoing or anything in this Agreement to the contraryFrom and after such time as a Person becomes an Acquiring Person (a "Section 11(a)(ii) Event"), any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(ii) In the event that there shall not be sufficient Common Shares of the Company authorized but unissued (and not reserved for issuance for purposes other than upon exercise of the Rights) 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 payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as Common Shares (such shares of preferred stock, hereinafter referred to as ("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 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 substitute for the Adjustment Shares pursuant to clause (B) above within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (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, Common Shares (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 Common Shares might be authorized for issuance for 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 (x) shall provide, subject to the last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period 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 shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Shares shall be the current per share market price (as determined pursuant to Section 11(d) hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent" shall be deemed to have the same value as the Common Shares on such date.
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock Shares (or securities convertible into the Common StockShares) at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock 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 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. Common Shares of the Common 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 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 has had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock Shares on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification of Common Shares and prior to the expiration of 30 Trading Days 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 per share market price shall be appropriately adjusted to reflect the current market price per Common Share. The closing price for each Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the 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 Quotations System ("Nasdaq") or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading or Nasdaq, as the case may be, is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Common Shares are not listed or "value" of a, share of Common Stock admitted to trading on any date shall national securities exchange or Nasdaq, as the case may be, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (Pentair Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-two hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one-two hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-two hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price, or "value" regular way, or, in case no such sale takes place on such day, the average of a, share of Common Stock on any date shall bethe closing bid and asked
Appears in 1 contract
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. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares shares, or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate Purchase Price such holder would have to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become an Acquiring Person, then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares one one-hundredth of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, the then current per share market price 50% of the Company's Current Market Price per one share of 12 23 Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of any one of the events listed above in this subparagraph (b)) (such number of shares being referred to as the "Number of Adjustment Shares").
(c) In the event that there shall not be sufficient shares in treasury or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, a number of shares, or unit of shares, of (x) Common Stock, and (y) any class or series of preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the Number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "Common Stock Equivalent"); provided however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or Common Stock Equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or Common Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or Common Stock Equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law, and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or Common Stock Equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), a majority of the Board of Directors may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the event described in Section 11(b) hereof shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and Common Stock Equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into the Common Preferred Stock or 13 24 Equivalent Preferred Stock) , at a subscription or purchase price per share of the Common Preferred Stock (or per share of Equivalent Preferred Stock or having a conversion price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price Current Market Price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering subscription or purchase price of the total number of shares of the Common Preferred Stock so or Equivalent Preferred Stock to be offered for subscription or purchase (and/or the aggregate initial conversion price of the convertible securities so to be offeredoffered for subscription or purchase) would purchase at such current market price Current Market Price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 or purchase price (and/or the conversion price of convertible securities) may be paid in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per Current Market Price for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per Current Market Price for one share of the Common 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 14 25 shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market priceCurrent Market Price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the Current Market Price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market Current Market Price" shall be appropriately adjusted to reflect the Current Market Price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last transaction price as reported by the Nasdaq National Market or, if not so reported, the average of the high bid and low asked prices in the over-the-counter market, as reported by the Nasdaq Stock Market or such other system then in use, or, if on any such date the Security is not reported by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange, a Business Day. If the Security is not publicly held or not so listed or traded, "Current Market Price" shall mean the fair value as determined in good faith by a majority of the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a 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 capital stock issuable on such date, shall be proportionately adjusted (without duplicating the effect of Section 11(n)) so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock 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. If an ; provided, however, that in no event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii)shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value, if any, of 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)shares of capital stock of the Corporation issuable upon exercise of one Right.
(ii) In Subject to Section 24 of this Agreement, in the event that
(A) any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly, shall become (1) merge into the Corporation or otherwise combine with the Corporation and the Corporation shall be the continuing or surviving corporation of such merger or combination (other than in a transaction subject to Section 13), (2) merge or otherwise combine with any Subsidiary of the Corporation, (3) in one or more transactions (other than in connection with the exercise of Rights or the exercise or conversion of securities exercisable or convertible into capital stock of the Corporation or any of its Subsidiaries) transfer any assets to the Corporation or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of capital stock of the Corporation or any of its Subsidiaries or for securities exercisable for or convertible into shares of any class of capital stock of the Corporation or of any of its Subsidiaries, or otherwise obtain from the Corporation or any of its Subsidiaries, with or without consideration, any additional shares of any class of capital stock of the Corporation or any of its Subsidiaries or securities exercisable for or convertible into shares of any class of capital stock of the Corporation or any of its Subsidiaries (other than as part of a pro rata distribution to all holders of such shares of any class of capital stock of the Corporation, or any of its Subsidiaries), (4) sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose (in one or more transactions) of any assets (including securities) to, from, with or of, as the case may be, the Corporation or any of its Subsidiaries (other than in a transaction subject to Section 13), (5) receive any compensation from the Corporation or any of its Subsidiaries other than compensation as a director or for full-time employment as a regular employee, in either case, at rates in accordance with the Corporation's (or its Subsidiaries') past practices, or (6) receive the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Corporation or any of its Subsidiaries, or
(B) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization or reorganization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any other transaction or series of transactions involving the Corporation or any of its Subsidiaries (whether or not with or into or otherwise involving an Acquiring Person), other than a transaction subject to Section 13, which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Corporation or any of its Subsidiaries beneficially owned by any Acquiring Person or any Affiliate or Associate thereof, or
(C) any Person (other than the Corporation or any Related Person) who or which, together with all Affiliates and Associates of such Person, shall at any time after the date of this Agreement, become the Beneficial Owner of 15% or more of the Common Shares then outstanding (other than pursuant to any transaction set forth in Section 13); provided, however, that a Person shall not be deemed to have become the Beneficial Owner of 15% or more of the Common Shares then outstanding for the purposes of this Section 11(a)(ii)(C) solely as a result of a reduction in the number of Common Shares outstanding, unless subsequent to such reduction such Person or any Affiliate or Associate of such Person shall become the Beneficial Owner of any additional Common Shares, or
(D) any Person is declared to be an Adverse Person by the Board of Directors, then each holder of a Right 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 shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this AgreementAgreement and in lieu of the number of Common Shares for which the Right is then exercisable, such number of shares of Common Stock Shares of the Company Corporation as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the CompanyCorporation's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any such Person shall become became an Acquiring Person). In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company Corporation shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding From and after the foregoing or anything occurrence of the earlier of the events described in this Agreement to the contraryclauses (A), (B), (C) and (D) above, any Rights that are or were acquired or beneficially owned by any such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares authorized and unissued to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Corporation shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights. However, if the Corporation is unable to cause the authorization of additional Common Shares within 90 calendar days after the occurrence of an event in Section 11(a)(ii), then, notwithstanding anything in this Agreement to the contrary, the Corporation shall determine the excess of the value of the Common Shares issuable upon the exercise of a Right over the Purchase Price (such excess being hereinafter referred to as the "Spread") and shall be obligated to deliver, upon the surrender of such Right and without requiring payment of the Purchase Price, Common Shares (to the extent available) and cash (to the extent permitted by applicable law and any agreements or instruments to which the Corporation is a party in effect immediately prior to the first occurrence of an event in Section 11(a)(ii)) in an amount equal to the Spread. To the extent that any legal or contractual restrictions prevent the Corporation from paying the full amount of cash payable in accordance with the foregoing sentence, the Corporation shall pay to holders of the Rights as to which such payments are payable all amounts which are not then restricted on a pro rata basis and shall continue to make payments on a pro rata basis as funds become available until the full amount due to each such Right holder has been paid.
(b) In the case the Company Corporation shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges and preferences as the Common Stock Shares ("equivalent common shares")) or securities convertible into the Common Stock) Shares or equivalent common shares at a price per Common Share or equivalent common share of the Common Stock (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or equivalent common shares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of Common Shares and/or equivalent common shares of the Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional Common Shares and/or equivalent common shares of the Common Stock 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, if any, of the shares of capital stock of the Corporation issuable upon exercise of one Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the CompanyCorporation, whose determination shall be described in a statement filed with the Rights Agent. Common Shares of the Common Stock owned by or held for the account of the Company Corporation 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 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 has had not been fixed.
(c) In case the Company Corporation shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company Corporation is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)), 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Shares on such record date, date less the fair market value (as determined in good faith by the Board of Directors of the CompanyCorporation, 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; 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, if any, of the shares of capital stock of the Corporation to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share any security (a "Security" for the purpose of the Common Stock this Section 11(d)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current per share market price of the Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares, or (B) any subdivision, combination or reclassification of such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination of reclassification, then, and in each such case, the current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors of the Corporation. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the purpose transaction of any computation in Section 11(a)(ii) and Section 13business or, if the "current market price" per, Security is not listed or "value" of a, share of Common Stock admitted to trading on any date shall benational securities exchange, a Business Day.
Appears in 1 contract
Samples: Rights Agreement (MFB Corp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson (“Section 11(b) Event”), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the then number of shares one one-ten thousandths of Common a share of Preferred Stock for which a Right is then exercisable, exercisable in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one one-ten thousandths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d) hereof11(f) on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the “Number of Adjustment Shares”).
(c) In the event that there shall not be sufficient treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one one-ten thousandths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to, Preferred Stock, equal in the aggregate to the Number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a “common stock equivalent”); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of shareholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash or other consideration (including, without limitation, debt securities or assets or a combination of any of the foregoing) equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights (other than any Rights hereunder) or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock (“equivalent preferred stock”)) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in determined pursuant to Section 11(d11(f)) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be conclusive for all purposes. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b11(d)), 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in determined pursuant to Section 11(d11(f)) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights AgentAgent and shall be conclusive for all purposes) of the portion of the assets or evidences of indebtedness so to be distributed or of such convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common StockPreferred Stock (as determined pursuant to Section 11(f)). 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "“current market price" per, or value ” of a, share any security (a “Security” for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to to, but not including, such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after but not including the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price shall be appropriately adjusted by the Board of Directors to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price" per, 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common if the Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on any date shall bethe principal national securities exchange on which the
Appears in 1 contract
Samples: Shareholder Protection Rights Agreement (Post Holdings, Inc.)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide the outstanding Common StockShares, (C) combine the outstanding Common Stock Shares into a smaller number of shares Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).been
(ii) In Subject to Section 24 of this Agreement, in the event that any Person shall should become an a Twenty Percent Acquiring Person, each holder of a Right 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 shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock Shares of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (y) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock Shares (determined pursuant to Section 11(d) hereof) on the date on which any Person shall become an Acquiring Personof the occurrence of such event. In the event that any Person shall become an a Twenty Percent Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish From and after the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contraryoccurrence of such event, any Rights that are or were acquired or beneficially owned by any Twenty Percent Acquiring Person (or any Associate or Affiliate of such Twenty Percent Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an a Twenty Percent Acquiring Person Person, whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an a Twenty Percent Acquiring Person Person, whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Twenty Percent Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an a Twenty Percent Acquiring Person Person, whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit the exercise in full of the
(b) In the case the Company shall fix a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (Shares or securities convertible into the Common Stock) Shares at a price per share of the Common Stock Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares) less than the then current per share market price per share of the Common Stock Shares (as defined in Section 11(d)) 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 the numerator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock Shares which the aggregate offering price of the total number of shares of the Common Stock Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in 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. Shares of the Common 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 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 has not been fixed.or
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular periodic quarterly cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription -26- 30 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 the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) 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 share of Common Share and the Common Stock and denominator of which the denominator shall be such current per share market price per share of the Common StockShares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current per share market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beShares on
Appears in 1 contract
Samples: Rights Agreement (Suffolk Bancorp)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Agreement (Ai) declare a dividend on the Common Stock payable in shares of the Common Stock, (Bii) subdivide the outstanding Common Stock, (Ciii) combine the outstanding Common Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Common Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Common Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the then number of shares of Common Stock for which a Right is then exercisable, exercisable in accordance with the terms of this Agreement, Agreement such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares of Common Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights (other than any Rights hereunder) or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities having the same or more favorable rights, privileges and preferences as the Common Stock ("equivalent common stock")) or securities convertible into the Common Stock) Stock or equivalent common stock, at a price per share of the Common Stock (or per share of equivalent common stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Stock outstanding on such record date plus the number of shares of the Common Stock which the aggregate offering price of the total number of shares of the Common Stock so or equivalent common stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common Stock and/or equivalent common 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Stock, but including any dividend payable in stock other than Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Common Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the 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.
(df) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" perof any security (a "Security" for purposes of this Section 11(f)), or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, and for the purpose of any computation in Section 11(a)(ii) and Section 13however, the "current market price" per, or "value" of a, share of Common Stock on any date shall bethat in
Appears in 1 contract
Samples: Shareholder Protection Rights Agreement (New Ralcorp Holdings Inc)
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and kinds of shares 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. (a).
(i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (B) subdivide the outstanding Common shares of Preferred Stock, (C) combine the outstanding Common Preferred Stock into a smaller number of shares Preferred Stock, or (D) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof), the 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 capital stock issuable on such datefor which the Rights shall be exercisable, shall be proportionately adjusted so that the holder of any Right Rights exercised after such time shall be entitled to receive receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right Rights had been exercised immediately prior to such date and at a time when the Common Stock applicable 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; 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 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)) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition toaddition, and shall be made prior prior, to any adjustment required pursuant to Section 11(a)(ii)) hereof.
(ii) In the event Subject to Section 24 of this Agreement, if:
(A) any Person shall become an Acquiring Person, each holder unless the event causing the Person to become an Acquiring Person is a transaction to which the provisions of Section 13(a) hereof apply;
(B) any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly, shall (1) 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 shares of Common Stock of the Company shall remain outstanding and unchanged, (2) in one transaction or a Right shall thereafter have a right to receiveseries of transactions, upon exercise thereof at a price equal transfer any assets to the then current Purchase Price multiplied by Company or any of its Subsidiaries in exchange (in whole or in part) for shares of Common Stock of the number Company, for other equity securities of the Company or any of its Subsidiaries, or for securities exercisable for or convertible into shares of equity securities of the Company or any of its Subsidiaries (whether shares of Common Stock of the Company or otherwise) or otherwise obtain from the Company or any of its Subsidiaries, with or without consideration, any additional shares of such equity securities or securities exercisable for or convertible into such equity securities (other than pursuant to a pro rata distribution to all holders of shares of Common Stock of the Company), (3) 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 the Company or any of its Subsidiaries or any employee benefit plan maintained by the Company or any of its Subsidiaries or any trustee or fiduciary with respect to such plan acting in such capacity, assets (including securities) on terms and conditions less favorable to the Company or such Subsidiary, plan, trustee or fiduciary than those that could have been obtained in arm’s-length negotiations with an unaffiliated third party, other than pursuant to a transaction set forth in Section 13(a) hereof, (4) 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 the Company or any of its Subsidiaries or any employee benefit plan maintained by the Company or any of its Subsidiaries or any trustee or fiduciary with respect to such plan acting in such capacity (other than transactions, if any, consistent with those engaged in, as of the date hereof, by the Company and such Acquiring Person or such Associate or Affiliate thereof), assets (including securities or intangible assets) having an aggregate fair market value of more than $150,000,000, other than pursuant to a transaction set forth in Section 13(a) hereof, (5) receive, or any designee, agent or representative of such Acquiring Person or any Affiliate or Associate of such Acquiring Person shall receive, any compensation from the Company or any of its Subsidiaries other than compensation for which full-time employment as a Right is then exercisable, regular employee at rates in accordance with the terms of this AgreementCompany’s (or its Subsidiaries’) past practices, such number or (6) receive the benefit, directly or indirectly (except proportionately as a holder of shares of Common Stock of the Company or as required by law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries or any employee benefit plan maintained by the Company or any of its Subsidiaries or any trustee or fiduciary with respect to such plan acting in such capacity; or
(C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a transaction or transactions to which the provisions of Section 13(a) hereof apply (whether or not with or into or otherwise involving an Acquiring Person), which has the effect, directly or indirectly, of increasing by more than one percent the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person; then promptly following the occurrence of an event described in Section 11(a)(ii)(A), (B) or (C) (each being a “Section 11(a)(ii) Event”), proper provision shall be made so that each holder of a Right, except as otherwise provided in Section 7(e) hereof, shall thereafter have the right to receive for each Right, upon exercise thereof in accordance with the terms of this Agreement and payment of the then-current Purchase Price, in lieu of the number of Units of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, such number of Units of Preferred Stock as shall equal the result obtained by (x) multiplying the then then-current Purchase Price by the then number of shares Units of Common Preferred Stock for which a Right is then was exercisable (or would have been exercisable if the Distribution Date had occurred) immediately prior to the first occurrence of a Triggering Event, and dividing that product by 50% of the Current Per Share Market Price for shares of Common Stock on the date of occurrence of the most recent Triggering Event (ysuch number of Units of Preferred Stock being hereinafter referred to as the “Adjustment Shares”). Upon the occurrence of a Section 13 Event, any Rights that shall not have been previously exercised pursuant to this Section 11(a)(ii) shall thereafter be exercisable only pursuant to Section 13 hereof and not pursuant to this Section 11(a)(ii). The Company shall notify the Purchase Price orRights Agent when this Section 11(a)(ii) applies and shall use all commercially reasonable efforts to ensure that the provisions of this Section 11(a)(ii) are complied with, if less than but neither the Purchase Price, Company nor the then current per share market price Rights Agent shall have any liability to any holder of Rights Certificates or other Person as a result of the Company's Common Stock ’s failure to make any determinations with respect to any Acquiring Person or its Affiliates, Associates or transferees hereunder.
(determined pursuant to Section 11(diii) hereof) on the date on which any Person shall become an Acquiring Person. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled.
(b) In the case the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase the Common Stock (or securities convertible into the Common Stock) at a price per share of the Common Stock (or having a conversion price per share of the Common Stock, if a security is convertible into the Common Stock) less than the current market price per share of the Common Stock (as defined in Section 11(d)) 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 shall be the number of shares of Preferred Stock which are authorized by the Common Stock Company’s certificate of incorporation but not outstanding on such record date plus the number of shares or reserved for issuance for purposes other than upon exercise of the Common Stock which Rights are not sufficient to permit the aggregate offering price exercise in full of the total number Rights, or if any necessary regulatory approval for such issuance has not been obtained by the Company, the Company shall, in lieu of shares issuing Units of Preferred Stock in accordance with Section 11(a)(ii) hereof: (A) determine the Common Stock so to be offered excess of (and/or the aggregate initial conversion price of the convertible securities so to be offered1) would purchase at such current market price and of which the denominator shall be the number of shares of the Common Stock outstanding on such record date plus the number of additional shares of the Common 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 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 Units of Directors Preferred Stock issuable upon the exercise of a Right (the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 or warrants are not so issued, “Current Value”) over (2) the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if (such record date has not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all holders of the Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common Stock) or subscription rights or warrants (excluding those being referred to in Section 11(b)), 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 shall be the current market price per share of the Common Stock (as defined in Section 11(d)) 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 share of the Common Stock and of which the denominator shall be such current market price per share of the 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.
(d) For the purpose of any computation under Section 11(b) or (c) hereof, the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for the purpose of any computation in Section 11(a)(ii) and Section 13, the "current market price" per, or "value" of a, share of Common Stock on any date shall beas
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number of shares Common Shares covered by each Right Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a).
(i) In the event the Company shall Company, at any time after the date of this Agreement Agreement, (A) declare declares a dividend on the Common Stock Shares payable in shares of the Common StockShares, (B) subdivide subdivides the outstanding Common Stock, Shares (C) combine combines the outstanding Common Stock Shares into a smaller number of shares Common Shares, or (D) issue issues any shares of its capital stock in a reclassification of the Common Stock Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereofof this Agreement, 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 capital stock issuable covered by such Right on such date, shall will be proportionately adjusted so that the holder of any Right exercised after such time shall will be entitled to receive the aggregate number and kind of shares of capital stock whichthat, if such Right had been exercised immediately prior to such date and at a time when the Common 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 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).
(ii) In Upon the event any Person shall become an Acquiring Personeffective date of a Trigger Event, proper provision will be made so that each holder of a Right shall Right, except as otherwise provided in this Agreement, will thereafter have a right to receive, upon exercise thereof of such Right at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock Shares for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares Common Shares (the "number of Common Stock Adjustment Shares") of the Company as shall then equal the result obtained by (xA) multiplying the then current Purchase Price by the then number of shares of Common Stock Shares for which a Right is then exercisable and dividing that product by (yB) the Purchase Price or, if less than the Purchase Price, 50% of the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) Shares on the effective date on which any Person shall become an Acquiring Person. of such Trigger Event.
(iii) In the event that any Person shall become an Acquiring Person and there are not sufficient treasury shares or authorized but unissued Shares to permit the exercise in full of the Rights shall then be outstandingin accordance with Section 11(a)(ii) of this Agreement, the Company shall: (A) determine the excess of (1) the current market value of the number of 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 number of Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price (but not below zero), (3) Common Shares or other equity securities of the Company (including, without limitation, shares or units of shares which the Board of Directors of the Company has deemed to have the same value and voting rights as shares of Common Shares), (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 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 take any action which would eliminate or diminish have made adequate provision to deliver value pursuant to clause (B) above within 30 days following the benefits intended effective date of a Trigger Event, then the Company shall be obligated to be afforded by deliver, upon the Rights. Notwithstanding surrender for exercise of a Right and without requiring payment of the foregoing or anything in this Agreement Purchase Price, Common Shares (to the contraryextent available) and then, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of such Acquiring Person) this Section 11(a)(iii), the value of the Common Shares shall be void and any holder the current per share market price of such Rights shall thereafter have no right to exercise such Rights under any provision the Common Shares on the effective date of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledTrigger Event.
(b) In the case the Company shall fix fixes a record date for the issuance of rights rights, options or warrants to all holders of the Common Stock Shares entitling them (for a period expiring within 45 calendar forty-five (45) days after such record date) to subscribe for or purchase the Common Stock (Shares or Equivalent Common Shares or securities convertible convertible, directly or indirectly, into the Common Stock) Shares or Equivalent Common Shares at a price per share of the Common Stock Share or Equivalent Common Share (or having a conversion price per share of the Common Stockshare, if a security is convertible into the Common StockShares or Equivalent Common Shares) less than the then current per share market price per share of the Common Stock (as defined in Section 11(d)) Shares on such record date, the Purchase Price to be in effect after such record date shall will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which the numerator shall be is the number of shares of the Common Stock Shares outstanding on such record date plus the number of shares of the Common Stock which Shares that the aggregate offering price of the total number of shares of the Common Stock Shares and/or Equivalent Common Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which the denominator shall be is the number of shares of the Common Stock Shares outstanding on such record date plus the number of additional shares of the Common Stock Shares and/or Equivalent Common Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid in a consideration consideration, part or all of which shall be is in a form other than cash, the value of such consideration shall will 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. Common Shares of the Common Stock owned by or held for the account of the Company shall will not be deemed outstanding for the purpose of any such computation. Such adjustment shall will be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Purchase Price shall will be adjusted to be the Purchase Price which that would then be in effect if such record date has had not been fixed.
(c) In case the Company shall fix fixes a record date for the making of a distribution to all holders of the Common Stock Shares (including any such distribution made in connection with a consolidation or merger in which the Company is in the continuing or surviving corporation) of evidences of indebtedness indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a regular periodic cash dividend at a rate not in excess of 125% of the rate of the last cash dividend theretofore paid or a dividend payable in Common StockShares) or subscription rights or warrants (excluding those referred to in Section 11(b)) of this Agreement), the Purchase Price to be in effect after such record date shall will be determined by multiplying the Purchase repurchase Price in effect immediately prior to such record date by a fraction, the numerator of which is the numerator shall be the then current per share market price per share of the Common Stock (as defined in Section 11(d)) 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 will be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness indebtedness, cash or assets so to be distributed or of such subscription rights or warrants applicable to one Common Share and the denominator of which is such current per share market price of the Common Stock and of which the denominator shall be such current market price per share of the Common StockShares. Such adjustments shall will be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall will again be adjusted to be the Purchase Price which that would then be in effect if such record date had not been fixed.
(d) For No adjustment in the purpose Purchase Price will be required unless such adjustment would require an increase or decrease of at least l%, in the Purchase Price; provided, however, that any adjustments which by reason of this Section 11(d) are not required to be made will be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 will be made to the nearest cent or to the nearest ten-thousandth of a Common Share or of any computation other share or security, as the case may be. Notwithstanding the first sentence of this Section 11(d), any adjustment required by this Section 11(d), will be made no later than the earlier of (i) three (3) years from the date of the transaction that requires such adjustment or (ii) the date of the expiration of the right to exercise any Rights.
(e) If, as a result of an adjustment made pursuant to Section 11(a) of this Agreement, the holder of any Right exercised becomes entitled to receive any shares of capital stock of the Company other than Common Shares, the number of such other shares so receivable upon exercise of any Right will be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained in Sections 11(a) through (c), inclusive, and the provisions of Sections 7, 9, 10 and 13 with respect to the Common Shares will apply on like terms to any such other shares.
(f) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price under this Agreement will evidence the right to purchase, at the adjusted Purchase Price, the number of Common Shares purchasable from time to time under this Agreement upon exercise of the Rights, all subject to further adjustment as provided in this Agreement.
(g) Unless the Company has exercised its election as provided in Section 11(h), of this Agreement, upon each adjustment of the Purchase Price as a result of the calculations made in Section 11(b) or and (c) hereofof this Agreement, each Right outstanding immediately prior to the "current market price" per, or value of a, share of the Common Stock on any date of determination shall be deemed to be the average of the daily closing prices per share making of such adjustment will thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of Common Stock for Shares (calculated to the 30 consecutive Trading Days nearest one ten-thousandth of a Common Share) obtained by (as such term is hereinafter definedi) multiplying (A) the number of Common Shares covered by a Right immediately prior to this adjustment by (B) the Purchase Price in effect immediately prior to such dateadjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price.
(h) The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in substitution for any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights will be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights will become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company will make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment to be made. Such record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, will be at least seven (7) Business Days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(h), the Company will, as promptly as practicable, cause to be distributed to holders of record of Right Certificates on such record date Right Certificates evidencing, subject to Section 14 of this Agreement, the additional Rights to which such holders are entitled as a result of such adjustment, or, at the option of the Company, will cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of adjustment, and upon surrender of Right Certificates (if required by the Company) new Right Certificates evidencing all the Rights to which such holders are entitled after such adjustment. Right Certificates so to be distributed will be issued, executed and countersigned in the manner provided for in this Agreement and will be registered in the purpose names of the holders of record of Right Certificates on the record date specified in the public announcement.
(i) Irrespective of any computation adjustment or change in the Purchase Price or the number of Common Shares issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price and the number of Common Shares that were expressed in the initial Right Certificates issued under this Agreement.
(j) Before taking any action that would cause an adjustment reducing the Purchase Price below the then par value, if any, of the Common Shares or other securities issuable upon exercise of the Rights, the Company will take all such action as may be necessary in order that the Company may validly and legally issue fully paid and nonassessable Common Shares or other securities at such adjusted Purchase Price.
(k) In any case in which this Section 11 requires that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuing to the holder of any Right exercised after such record date of the Common Shares and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the Common Shares and other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company will deliver to such holder a due bill xx other appropriate instrument evidencing right of such holder to receive such additional shares upon the occurrence of the event requiring such adjustment.
(1) Anything in this Section 11 to the contrary notwithstanding, the Company will be entitled to make such adjustments in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that it in its sole discretion determines to be advisable in order that any consolidation or subdivision of the Common Shares, issuance wholly for cash of any Common Shares at less than the current per share market price, issuance wholly for cash of any Common Shares or securities that by their terms are directly or indirectly convertible into or exchangeable for Common Shares, dividends in Common Shares payable in Common Shares or issuance of rights, options or warrants referred to in Section 11(a)(ii11(b) and Section 13of this Agreement, hereafter made by the "current market price" per, or "value" Company to holders of a, share of its Common Stock on any date shall beShares will not be taxable to such stockholders.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-two hundredths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one-two hundredths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-two hundredths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended. The Board of Directors may, but shall not take any action which would eliminate or diminish be required to, establish procedures to allocate the benefits intended to be afforded by the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to receive Common Stock and common stock equivalents upon exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer among holders of Rights, which such allocation may be, but is not required to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelledbe, pro-rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 Security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") National Market System, or "value" of a, share of Common Stock if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by a majority of the Board of Directors. If on any such date no market maker is making a market in the Security, the fair value of such Security on such date as determined in good faith by a majority of the Board of Directors shall bebe used. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange a day on which the Nasdaq National Market System is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange or included in the Nasdaq National Market System, a Business Day. If the Security is not publicly held or not so listed or traded, "current market price" shall mean the fair value as determined in good faith by a majority of the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent.
Appears in 1 contract
Adjustment of Purchase Price, Number of Shares or Number of Rights. The Purchase Price, the number and identity of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. .
(a)
(i) In the event the Company shall at any time after the date of this Rights Agreement (Ai) declare a dividend on the Common Preferred Stock payable in shares of the Common Preferred Stock, (Bii) subdivide the outstanding Common Preferred Stock, (Ciii) combine the outstanding Common Preferred Stock into a smaller number of shares or (Div) issue any shares of its capital stock in a reclassification of the Common Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof11, the Purchase Price in effect at the time of the record date for such dividend or the time of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock stock, including Preferred Stock, issuable on such dateupon exercise of a Right, shall be proportionately adjusted so that the holder of any Right exercised after such time time, upon payment of the aggregate consideration such holder would have had to pay to exercise such Right prior to such time, shall be entitled to receive the aggregate number and kind of shares of capital stock stock, including Preferred Stock, which, if such Right had been exercised immediately prior to such date and at a time when the Common 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 reclassification. If an event occurs which would require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(iib) In the event any Person shall become becomes an Acquiring PersonPerson ("Section 11(b) Event"), then proper provision shall be made so that each holder of a Right Right, subject to Section 7(e) and Section 24 hereof and except as provided below, shall thereafter after the later of the occurrence of such event and the effective date of an appropriate registration statement pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price Price, multiplied by the then number of shares one-ten-thousandths of Common a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, in lieu of shares of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (xy) multiplying the then current Purchase Price by the then number of shares one-ten-thousandths of Common a share of Preferred Stock for which a Right is then exercisable and dividing that product by (yz) 50% of the Purchase Price or, if less than the Purchase Price, the then current per share market price per one share of the Company's Common Stock (determined pursuant to Section 11(d11(f) hereofhereof on the date of the occurrence of the Section 11(b) Event) (such number of shares being referred to as the "number of Adjustment Shares").
(c) In the event that there shall not be sufficient Treasury shares or authorized but unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other provision of this Rights Agreement, to the extent necessary and permitted by applicable law and any agreements in effect on the date hereof to which the Company is a party, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price, multiplied by the then number of one-ten-thousandths of a share of Preferred Stock for which a Right is then exercisable, in accordance with the terms of this Rights Agreement, a number of shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity securities) of the Company, including, but not limited to Preferred Stock, equal in the aggregate to the number of Adjustment Shares where the Board of Directors shall have in good faith deemed such shares or units, other than the shares of Common Stock, to have at least the same value and voting rights as the Common Stock (a "common stock equivalent"); provided, however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock and/or common stock equivalents, then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or common stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient shares of Common Stock and/or common stock equivalents to be available for issuance upon exercise in full of the Rights, then the Company, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date thereof to which it is a party, shall make provision to pay an amount in cash equal to twice the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common Stock and/or common stock equivalents. To the extent that the Company determines that some action needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a majority of its members then in office may suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which any Person the Section 11(b) Event shall become an Acquiring Personhave occurred, in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c) and to determine the value thereof. In the event that of any Person shall become an Acquiring Person and the Rights shall then be outstandingsuch suspension, the Company shall not take any action which would eliminate or diminish issue a public announcement stating that the benefits intended to be afforded by exercisability of the Rights. Notwithstanding the foregoing or anything in this Agreement to the contrary, any Rights that are or were acquired or beneficially owned by any Acquiring Person has been temporarily suspended (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate with prompt written notice thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer Agent). The Board of Directors may, but shall not be required to, establish procedures to an Acquiring Person whose allocate the right to receive Common Stock and common stock equivalents upon exercise of the Rights would be void pursuant among holders of Rights, which such allocation may be, but is not required to the preceding sentence shall be cancelledbe, pro rata.
(bd) In the case If the Company shall fix a record date for the issuance of rights or warrants to all holders of the Common Preferred Stock entitling them (for a period expiring within 45 90 calendar days after such record date) to subscribe for or purchase the Common Preferred Stock (or securities having the same or more favorable rights, privileges and preferences as the Preferred Stock ("equivalent preferred stock")) or securities convertible into the Common Stock) Preferred Stock or equivalent preferred stock, at a price per share of the Common Preferred Stock (or per share of equivalent preferred stock or having a conversion or exercise price per share of share, as the Common Stockcase may be, if a security is convertible into the Common Stock) less than the current market price per share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) 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 the numerator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of shares of the Common Preferred Stock which the aggregate offering price of the total number of shares of the Common Preferred Stock so or equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price price, and the denominator of which the denominator shall be the number of shares of the Common Preferred Stock outstanding on such record date plus the number of additional shares of the Common Preferred Stock 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 in a consideration 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 a majority of the Board of Directors of the CompanyDirectors, whose determination shall be described in a statement filed with the Rights Agent. Shares of the Common 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 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 has had not been fixed.
(ce) In case If the Company shall fix a record date for the making of a distribution to all holders of the Common Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets indebtedness, cash (other than a regular periodic cash dividend at a rate not in excess out of 125% earnings or retained earnings of the rate of the last cash dividend theretofore paid or Company), assets (other than a dividend payable in Common Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b)11(d) 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 the numerator shall be the current market price per for one share of the Common Preferred Stock (as defined in Section 11(d)11(f) hereof) on such record date, date less the fair market value (as determined in good faith by a majority of the Board of Directors of the CompanyDirectors, 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 convertible securities, subscription rights or warrants applicable to one share of Preferred Stock, and the Common Stock and denominator of which the denominator shall be such current market price per for one share of the Common 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.
(di) For the purpose of any computation under Section 11(b) or (c) hereofhereunder, the "current market price" per, or value of a, share any security (a "Security" for purposes of the Common Stock this Section 11(f)(i)) on any date of determination shall be deemed to be the average of the daily closing prices per share of such Common Stock Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to but not including such date; provided, however, that in the event that the current market price per share of such Security is determined during a period following the announcement by the issuer of such Security of (A) a dividend or distribution on such Security payable in shares of such Security or securities convertible into shares of such Security or (B) any subdivision, combination or reclassification of such Security, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution or the purpose of any computation record date for such subdivision, combination or reclassification, then, and in Section 11(a)(ii) and Section 13each such case, the "current market price" pershall be appropriately adjusted to reflect the current market price per share equivalent of such Security. 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 "value" of aadmitted to trading on the New York Stock Exchange or, share of Common Stock if the Security is not listed or admitted to trading on any date shall bethe New
Appears in 1 contract
